More employees these days are taking their grumblings about work (and their co-workers) from the office to the virtual watercoolers of Facebook, Twitter and other online outposts.
But as a new ruling shows, it’s best to avoid punishing workers for discussing workplace issues online, especially if those e-chats are being held among co-workers. Such online discussions could be deemed “concerted activity” that’s protected under federal labor law, even if you’re a nonunion workplace.
Recent case: An employee of a New York nonprofit group posted this on her personal Facebook page, “Lydia Cruz, a co-worker, feels that we don’t help our clients enough … I about had it! My fellow co-workers, how do u feel?”
Four off-duty employees responded to the post, objecting to Cruz’s alleged comment about their poor work. The nonprofit fired the worker who posted the original message, plus the four co-workers, saying all five violated the company’s zero-tolerance policy on “bullying and harassment.” The nonprofit was not a unionized workplace.
The National Labor Relations Board (NLRB) sided with the workers, saying the firing violated the National Labor Relations Act (NLRA).
The NLRB said the employees’ Facebook comments did fall within the definition of “concerted activity” for their mutual aid and protection.
That’s because the comments, the NLRB said, “were taking a first step towards taking group action to defend themselves against the accusations” that they believed would be taken to management. The NLRB said the comments could not be construed as harassment, as the nonprofit argued. (Hispanics United of Buffalo Inc., 359 NLRB No. 37)
Bottom line: This important ruling “demonstrates an expansion of the NLRB’s traditional definition of protected concerted activity,” says the Jackson Lewis law firm.
As a result, employers should be increasingly cautious about disciplining or firing workers based on their communications—both online and off—relating to the workplace. As Jackson Lewis notes, this decision, “opens the door to the argument that any discussion among co-workers pertaining to workplace matters could be considered ‘protected’ under the NLRA.”
Managing social networking at work: 5 questions
1. How closely do you want to regulate social networking? It is not realistic to ban all social networking at work. For one thing, you will lose the benefit of business-related networking. Further, a blanket ban is also hard to monitor and enforce.
2. If you limit social networking, how will you monitor it? Turning off Internet access, installing software to block certain sites or monitoring employees’ use and disciplining offenders are all possibilities. Do you want to go there?
3. If you permit social networking, do you want to limit it to work-related conduct, or permit limited personal use? How you answer this question depends on how you balance productivity versus marketing return.
4. How do you define “appropriate business behavior"? Employees need to understand that what they post online is public, and they have no privacy rights in what they put out for the world to see. If they are posting from work, anything in cyberspace can be used as grounds to discipline an employee.
5. How will social networking intersect with other policies on harassment, technology and confidentiality? Employment policies do not work in a vacuum. Employees’ online presence—depending on what they are posting—can violate any number of other corporate policies. Drafting a social networking policy is an excellent opportunity to revisit, update and fine-tune other policies.
