Guidelines to Assess the Appropriateness of Social Media Postings in the Workplace

Recently, an employee’s photos of co-workers on Facebook got her fired for violating employee handbook rules, including one against “disloyalty.” The National Labor Relations Board (NLRB) investigated and ruled that her employer violated federal labor law by imposing “overly broad” rules on the employee that could “chill” workers from talking about their working conditions, which are protected under the law. The NLRB decision is having some positive effects in preventing employers from stifling free speech in the name of loyalty to one’s employer. While I do not approve of negative postings about one’s co-workers or employer, I do support one’s Constitutional right to post photos and make stupid comments online.

The problem is where to draw the line. I believe it is whenever a posting about another party violates a law such as sexual harassment or discrimination, or when a person engages in cyber-bullying. Of course, any posting that threatens one’s livelihood or life is similarly over the line. No doubt there can be other such behaviors.

Here is how the law works. Federal labor laws, which generally regulate the relationship among employees, unions, and management, protect employees who engage in “concerted activity” to increase their pay, improve working conditions, or resolve other workplace problems. Employees are protected whether or not they are in a union. Even in a non-union workplace, employees who act together on workplace issues – by, for example, meeting with a manager to lobby for better benefits or having a group discussion about the company’s safety record – are protected from employer retaliation.

An activity is concerted only if it involves more than one employee’s concerns. For example, an employee who complains about her own performance evaluation is not taking concerted action. But an employee who complains, after consulting with or on behalf of coworkers, that the company’s performance evaluation system unfairly penalizes employees who speak up in safety meetings is engaged in concerted action. As the NLRB puts it, “personal gripes” are not protected.

Even if employees are clearly acting in a concerted way, they won’t be protected if they cross the line from constructive behavior to malicious or reckless actions. Employees who reveal company trade secrets or make threats of violent behavior, for example, won’t have any recourse if they are fired for these activities.

Recently, the NLRB has shown great interest in applying these protections to online employee posts and comments. Here are some examples:

• An employee was having a dispute with a coworker about job performance, staffing levels, and how well the employer (a nonprofit that provided services to the public) was servings its clients. In a Facebook post, the employee asked coworkers for their input on the issues, and several responded in online comments. All were fired because of the online conversation. The NLRB found that they were engaged in protected concerted activity, even though some of the comments were sarcastic or included profanity, because they were discussing working conditions in advance of a meeting with management.
• An employee made disparaging comments about a supervisor on Facebook, and a number of coworkers chimed in. The employee had been denied union representation to help her in responding to a customer complaint. The NLRB found that the employee’s comments were protected concerted activity.
• While on a lunch break following a dispute with a supervisor, an employee updated her Facebook status to an expletive and the name of the employer’s home improvement chain. Several coworkers “liked” her status. She later posted that the employer didn’t appreciate its employees; no coworkers responded to this online. She was fired for the posts. The NLRB found that she was not engaged in concerted activity because she was neither acting on behalf of other employees nor seeking their input or support to turn her complaint into a group action. Instead, the NLRB found she was airing a “personal gripe,” which was not protected.

As these cases show, employees are often protected if they are discussing employer policies or practices that apply broadly. Protection is also more likely if employees are having an online discussion to prepare to discuss issues with management. The more personal the post (for example, calling a supervisor names), the less likely the employee is protected. On the other hand, even if a post includes expletives and name-calling, it might still be protected if it is a complaint, responded to by other employees, about practices employees see as unfair or unwarranted. 

As in most things in life, the key is balance. Civility requires that we not insult others whether in personal communications or anonymous postings. Ethics requires that we treat others the way we want to be treated. If employees thinking about social media postings first thought about these simple rules, we wouldn’t have the problems we do today where excessively tasteless comments and photos are widespread in social media communications. Of course, most of what we see in society today borders on tasteless, even abusive behavior and cyber-bullying.

We need to learn to self-regulate our behavior. That is the key. We need to consider the consequences of our actions before deciding on what to do. A good guideline is to ask yourself: “How would I feel if my posting showed up on the front page of the local paper tomorrow morning.” Would I be proud of it or ashamed to have to defend it?”

Blog posted by Dr. Steven Mintz, aka Ethics Sage, on August, 20, 2015. Professor Mintz is on the faculty of the Orfalea College of Business at Cal Poly San Luis Obispo. He also blogs at: www.ethicssage.com.