As the recent “Duck Dynasty” controversy demonstrated, the First Amendment does not prevent employers from disciplining employees for exercising their right to free speech. But in the era of Facebook and Twitter, where much of employee speech takes place on social media, many employees may be surprised to learn that their posts and comments can get them fired. Members of the blogosphere learned of this reality some time ago, having coined the term “getting dooced” to describe being terminated for their blogging activities. Nonetheless, the employer’s right to restrict employees’ speech and social media activities is not absolute. In the private sector, for example, employers who wish to regulate employee use of social media must be careful not to violate the National Labor Relations Act (NLRA or Act).
The Act protects employees who engage in “concerted activity for mutual aid and protection.” Thus, employee speech that constitutes concerted activity, such as discussion of wages among co-workers, may be protected by the Act. Over the past several years, the National Labor Relations Board (“Board”) has begun applying these protections to employees’ social media activity. The Board has made clear that employers may violate the Act by disciplining employees who engage in protected concerted activity via social media and/or by having overly broad social media policies that restrain employees’ rights under the Act. In short, the Board has sought to ensure that employees’ social media communications are subject to the same NLRA protections as their in-person “water cooler” discussions. Even assuming the Board’s standards for so-called water cooler conversations are adequate, I would argue that this approach to social media is lacking.
On one hand, social media blurs the boundary between personal and work-related communications. Employees can now have water cooler discussions while relaxing at home. These discussions might be visible to the public or be hidden in secret groups. They might contain legitimate workplace grievances, innocent venting, or even visceral threats. While the Board and its adjudicators are capable of applying legal standards to such factual nuances, employees generally are not. On the other hand, social media enables employees to air their grievances before large audiences. True to the nature of social media, these grievances can be overblown and unnecessarily dramatic. Although employees who actively disparage their employers lose the protection of the Act, some employers could potentially suffer irreparable economic harm from negative publicity on social media, even if they are legally vindicated.
In sum, I believe the Board’s standards for protecting employee speech are inadequate as applied to social media. Because most employees lack the training necessary to apply legal standards to intricately nuanced facts, even employees who understand the basic structure of the NLRA are left uncertain as to their rights. The Board also seems to leave employers vulnerable to unwarranted negative publicity. In light of the now-ubiquitous nature of social media, the Board will likely grapple with this issue for some time to come.
Posted Jan. 27, 2014