Do employees have a right to complain about their jobs and employers on social media?
Another recent decision delivered by National Labor Relations Board (NLRB) regarding employee tweets may give some insights into this issue. But before we delve into this case, let’s consider the basis of the NLRB’s authority in the area of social media. The agency is a key enforcer of union laws and regulations. But it’s the NLRB’s responsibility for interpreting and enforcing the National Labor Relations Act (NLRA) that gives it a much broader charge, since the NLRA applies to all employers, unionized or not. And social media is covered through the NLRA’s protection of an employee’s right to engage in “concerted activity” under Section 7 of the statute. This protection extends to employee discussions about pay, work conditions or even safety concerns.
With that in mind, let’s examine the recent NLRB case in which a Chipotle employee in Pennsylvania was unhappy with his job and took to social media to air his grievances on Twitter. He tweeted about several things, but following a warning by his manager and after circulating a petition that alleged workers weren’t able to take breaks, he was terminated for violating the company’s social media policy. Chipotle argued that management was concerned that as an Iraq war veteran with post-traumatic stress disorder, the employee might become violent at work.
Following a claim filed by the employee in 2015, on August 18 the NLRB upheld a March ruling by an administrative law judge against Chipotle. The NLRB found that the company went too far with their social media policy and other policies and ordered Chipotle to:
For the NLRB decision, click here.
As a result, employers must be careful that their social media policies, while prohibiting unwanted conduct – such as revealing confidential information or making disparaging comments about the employer – do not impose undue restrictions on protected activities. Chances are, your company already has a social media policy and most likely some of your employees may be griping about their jobs and their bosses on social media. So, how do you regulate social media activities by your employees? Your best bet is to work with your human resources, legal and compliance contacts to reassess your code of conduct, social media policies and employee handbooks. In conducting your assessments, consider the following:
In the end, make sure you tailor your documents to fit your needs, but also in a manner that does not violate the NLRA while factoring in the guidance from the NLRB decisions.
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Patty P. Tehrani is an experienced compliance counsel and advisor and the founder of the Policy Patty Toolkit (www.policypatty.com). Patty has expansive knowledge and expertise on policy development as well as governance and risk management programs, processes and controls. You can follow her on LinkedIn or contact her via email@example.com.