Labor Law and Social Media: Friends or Enemies?

Social media sites such as Facebook are a routine way of communicating in today’s workplace. In fact, 93% of US adult Internet users are on Facebook, with more content sharing happening on the site than in any other form of communication, including email. But Facebook users aren’t just talking to their friends, they are talking to other businesses and brands. These new communication channels are providing great opportunity, but also great challenges to business owners. As employees now “like” things on Facebook and Tweet during work hours (the most common times for engaging with social media happen before noon), using employer equipment, and even talk about work, co-workers and clients on these social outlets, employers are now bound by laws that have been expanded to encompass social usage in the workplace.

According to the National Labor Relations Board (NLRB), employees are free to discuss working conditions and wages with one another. However, as companies try to regulate social media policy, disputes have risen involving employees vs. employer and even employer created social media policy vs. NLRB’s policy and protection on concerted activities, in which case NLRB’s policy would reign supreme. In one case of employer vs. employee, an employee was discharged after posting negative comments about her supervisor on her Facebook page. The company terminated her, but NLRB found that her case had merit and violated the governing law. 

While employers continue to try to regulate social media policy, they are advised to do so by following NLRA’s current standing guidelines that employees may communicate about the terms and conditions of their employment. Any company created social media policy should include this information as a disclaimer, and should not conflict with NLRA. Employers are urged to provide written policy to all employees in order to ensure compliance and provide back-up in the case of dispute. This information can be included in the employee handbook, posted next to labor law posters or dispersed during new hire orientation. Just as Federal and State labor law posters protect employees against workplace discrimination, so does written social media policy protect employee’s freedom of speech. Of course, there are exceptions which make it against the law for an employer to force an employee to work in an unbearable work environment (which could include social exchange of derogatory remarks between employees). In such a case, this would be for the courts to decide. However, employers can make sure that the law of the land is followed. Federal labor law posters take precedent over state labor law posters where the laws conflict. And NLRA social media policy takes precedent over company created social media policy, where the two conflict.