As an employer, can you discipline or fire employees for what they post online about your business?
Yes – and no.
You can fire an employee who reveals company trade secrets or threatens violent behavior. You may be able to fire an employee who posts what the National Labor Relations Act (NLRA) calls a “personal gripe” on his or her social media page. But the law on social media policies – which is still evolving – gets a bit murky here.
That’s because Section 7 of the NLRA protects employees’ right to discuss the terms and conditions of their employment. That includes certain job-related posts on social media, as determined by the The National Labor Relations Board (NLRB). The act applies to both union and non-union employees.
So even posts that include expletives and name-calling might be protected if two or more employees are engaging in a discussion about the shared terms and conditions of their employment. In other words, workers have a fair amount of social media latitude.
Companies’ social media policies have to be carefully written to adhere to the NLRA. The policy can’t restrict protected activity. But the NLRB goes further: The policy can’t be written so that a reasonable employee could construe it to prohibit protected activity. One way around that is to include a disclaimer that prevents employees from interpreting the policy the wrong way.
Under the NLRA, a variety of penalties can apply to an employer who violates Section 7, including
- Repayment of lost earnings and benefits
- Reinstatement of employment
- Removal of information from an employee’s personnel file
- Removal of offending provisions from employee handbooks
Employers also have to be careful about disciplining employees for off-duty activity on social networking sites. California is among the states that prohibit such disciplinary action, unless the company can show that the activity damaged it in some way.
If you have questions about your social media policy and whether it adheres to NLRA guidelines, contact Johnson Employment Law for guidance, 949-238-8044.