Social Media: Are Employees’ Negative Comments about Management Protected Expression?

Florida Banking Magazine
By J. Scott Hudson, Esq
Published: May 2011
As social media content seemingly expands at the speed of light, the National Labor Relations Board (NLRB) is struggling to apply an archaic law to employee postings, blogs and other comments about managers and employers. The National Labor Relations Act (NLRA), passed in 1935, protects the right of employees to engage in concerted activity.

Although concerted activity is not defined in the act, it includes activities jointly undertaken by employees relating to wages, hours, safety, benefits, working conditions and other job-related concerns. Employers are prohibited from taking action or implementing policies that interfere with, restrain or coerce employees as they exercise these rights.

The NLRB recently filed an unfair labor practice charge against an ambulance service company that fired an employee, in part, because of comments she made on her Facebook page about her manager. Upset that her manager asked her to respond to a customer complaint, the employee posted negative comments about the manager; other employees also posted comments in support of the employee and critical of the manager. The company says it then fired the employee because of complaints about her conduct, including personal attacks against co-workers on Facebook. They claimed the employee’s actions were in violation of the company’s social media policy which prohibited “disparaging, discriminatory or defamatory” comments about employees, managers or competitors. The NLRB, on the other hand, took the position that the company’s actions amounted to an infringement on the employee’s right to engage in concerted activity.

Ultimately, the parties settled the case and, on Feb. 7, 2011, the NLRB issued a news release stating that the company would “revise its overly-broad rules to ensure they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work and that they would not 22 – WWW.FLORIDABANKERS.COM discipline or discharge employees for engaging in such discussions.”

Though the NLRA provides broad protection for such electronic comments and postings, there are some limits. Postings that are clearly personal in nature, breach confidentiality, are disloyal, or reckless or malicious are not protected by the NLRA. Also, comments that disparage the bank or its services would not likely be protected either.

So if an employee should posts, “My branch manager is terrible,” the employer might be able to use this as the basis of an employment decision in that it appears to be a personal attack. If the employee says, “My branch manager is terrible because he makes me work the drive-thru every Saturday,” however, these comments could be protected as concerted activity. This is especially true if other employees respond and the conversation thread is clearly related to pay, benefits or working conditions.

As you review your social media policy or consider implementing a social media policy, here are some suggestions:

  • Emphasize bank policies, such as those related to professional conduct, confidentiality, discrimination, and harassment, apply to social media postings.
  • Make sure the social media policy complies with the NLRB’s stance against overly broad restrictions.
  • Prohibit the use of the bank’s name, logos or work e-mail addresses on social media sites.
  • If employees discuss work-related matters, emphasize that the employee is required to provide notice that the comments and opinions are their own and do not reflect the opinions of the bank.
  • Make it clear that the bank reserves the right to monitor employee comments and postings to the extent permitted by law.