Feds Protecting Online Criticism Of Workplaces
BOSTON (CBS) - It's accepted workplace wisdom in this era of social media that popping off a negative tweet or Facebook post about your boss guarantees a pink slip is in your future.
Yet while it's probably not advisable to call your boss a chucklehead on Twitter, there's growing evidence the National Labor Relations Board will step in and protect workers who complain about their working conditions on social media sites.
The reason, experts say, is the NLRB protects the rights of employees — whether they belong to unions or not — to engage in "concerted activities" with their co-workers.
In terms of speech, that means employees are protected when they discuss their working conditions, whether it be about pay or other issues, with each other.
The NLRB seems to have a special focus on such cases, local attorneys said, given the two dozen recent Facebook-related cases the NLRB has opened since last year.
The most recent case involves New York-based nonprofit Hispanics United of Buffalo, which the NLRB says fired five employees illegally because they criticized working conditions on Facebook. A hearing is set for June 22, according to press reports.
None of these cases have gone to trial so far, but several have settled. And the NLRB recently warned employers against clamping down on social media expressions, the Associated Press reported.
"Our view is that it doesn't matter where it takes place if it's protected conversation," said Tony Wagner, new-media specialist at the NLRB. "It's an interesting application of a 75-year-old law to a modern context."
Lisa van der Pool of the Boston Business Journal reports
Local attorneys caution that companies should create social media policies that reflect the rights of employees to engage in discussions about working conditions online.
"When I tell (clients) they really can't have a policy that prohibits employees from disparaging their bosses on the Internet, I'm met with puzzlement," said Liam O'Connell, a labor and employment partner at Nutter McClennen & Fish LLP.
O'Connell says the NLRB seems to be "taking an aggressive position" on protecting workers' rights to discuss work on the Internet.
While it may be OK to disparage your employer on social media sites, it's still not OK to accuse your boss of a crime or to disclose confidential company and client information, so there are certainly limits to what employees can post online.
"We've been telling folks, don't overreact," said O'Connell. "It's smart to have a social media policy, but make sure it's legal and be careful how you enforce it."
Ideally, employers will carve out policies that will prevent employees from posting overly inflammatory statements about their boss, but at the same time allow for constructive discussion about work conditions, said employment attorney Joshua Davis of Ogletree, Deakins, Nash, Smoak & Stewart PC in Boston.
"The law is struggling to come to terms with iPhones, iPads, Facebook and Google," said Davis.
