The increasing use of social media sites has made it ever more likely that your employees’ personal lives will at some point bleed over into your business. In addition to providing an unwelcome distraction for your employees, social networking sites and other “traditional” technology such as e-mail, texting and instant messaging are quickly becoming a serious headache for employers around the world. Without even trying that hard, employees can leak trade secrets and other confidential information, harass other employees or do potentially irretrievable damage to a company’s property and image. Little wonder that nearly 10% of U.S. employers have dismissed an employee for inappropriate use of Facebook or other social media sites.
But what about the simple griping about one’s employer, colleagues or management in which everyone engages from time to time? Does that justify termination or other sanction? Perhaps bizarrely, U.S. Federal law appears to allow employees in unionized environments to air their criticisms on social networking sites without recourse from their employers where they constitute a “protected concerted activity”, i.e. union rather than personal complaints.
The U.S. National Labor Relations Board recently filed a complaint on behalf of a union member who posted criticisms of her supervisor on Facebook. These drew much supportive comment from her unionized colleagues, which led in turn to further postings about the supervisor from the employee. Her employment was then terminated for violating the employer’s internet policies. The NLRB contended that the Facebook postings were protected concerted activity because they related to the workplace and were supported by a number of other union members, and therefore that the dismissal was unlawful. Sadly the parties recently settled, grievously disappointing pundits and analysts who were looking to this case to shed some light on where the line lies between legitimate union activity on the one hand and concerted character assassination on the other.
Although this one settled, it is unlikely to be the last case regarding employee use of social media. Employees cannot be disciplined for engaging in protected activity, but there must surely be limits to the scope of that protection to maintain order in the workplace and keep some parity between behaviours acceptable in unionized and non-unionized environments. Employers may want to review their Internet and social media policies to determine whether they are susceptible to an allegation that they would dissuade employees from exercising their rights to discuss wages, working conditions and other union-related matters. Is the policy over-broad in the license it provides or unduly restrictive? Because this area of law is still developing in line with the spread of access to social media sites at work, employers are best advised to take advice prior to taking disciplinary action because of an employee’s comments on social media.