In the age of social media, “water cooler gossip” has a whole new meaning and some new ramifications as well. Let’s say, for example, that a driver who is dissatisfied with your company’s equipment, routes, pay rates or benefits makes his or her feelings known on Facebook or Twitter. That results in noticeably fewer candidates for empty seats, which are already hard enough to fill considering the ongoing driver shortage. Possibly even worse is a loss of customer confidence as shippers wonder why they would entrust their loads to a company that’s employees are unhappy at best, and maybe even disgruntled enough to impact operations.
Under that scenario, as an employer of truck drivers, what are your legal rights involving social media? How can you address an employee’s online activities if they are negatively affecting your business? The United States legal system, as it adapts to new technologies, is wrestling with the same questions. The courts, while not charged with monitoring new technology and issuing opinions on things that may be problematic at some point in the future, are reactionary and are only addressing those issues when they present themselves through usual channels.
Unfortunately, this means that as new technologies like social media are developed and adopted many issues initially go unaddressed. When they do come before the courts or the National Labor Relations Board (NLRB), those entities must rely on laws that may not consider the nuances of how a new technology is used.
The law addressing social media and the rights of employers is found in Section 7 of the National Labor Relations Act (NLRA), which states that “[e]mployees’ shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively, through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The latter part of this section of the NLRA has long been interpreted as allowing employees to communicate with one another about the terms and conditions of their employment, even if the employer finds those communications disruptive or disparaging.
The law that protected “water-cooler-conversations” in the past is now being forcibly applied to social media communications by employees, and the results have been somewhat unfavorable for employers. As a result, when employers discipline employees for social media activity, they run a significant risk of a finding that they have violated the NLRA. In cases heard by the NLRB applying the “mutual aid and protection” language of Section 7 of the NLRA, the NLRB is often asked to consider to what extent an employee’s social media posts criticizing management or other employees are actually protected. In many cases, the NLRB has ignored what most people would consider completely unacceptable behavior by employees, concluding that inappropriate behavior is completely protected.
Two examples of this scenario come to mind. In 2014, an NLRB opinion centered on an employee’s use of vulgar, profane and arguably obscene language on his social media accounts, attacking his supervisor in a way that very few would tolerate. The company immediately fired the employee, who filed a charge with the NLRB, which concluded that the employee was complaining about the terms and conditions of his employment, and therefore his action was protected conduct under the NLRA. The employer then had to reinstate the employee with back pay.
In another recent case, questionable posts on a Facebook account, including sarcastic remarks and photographs and mocking comments by family, friends and co-workers were considered by the employer to be disparaging to the business. The employee soon found himself unemployed and while in this case the NLRB did not order that he be reinstated because one posting was not deemed protected, it did require that the employer rewrite its social media policy to be in compliance with the NLRA.
These scenarios illustrate a pattern of decisions under the current version of the NLRA as the NLRB is treating social media posts as it would communications made between employees at the water cooler or after work. I believe this fails to consider the way social media operates. I believe most of the people seeing the posts are not co-workers but are instead friends and acquaintances, and that the posts are likely being disseminated to a much larger group than just co-workers.
At the end of the day, before terminating an employee for social media issues, an employer looking to be proactive in regards to avoiding social media missteps would be wise to have the matter reviewed by counsel to determine if the statements are protected under the NLRA. You should also have in place a social media policy that complies with the NLRA. To that end, I would suggest working with an experienced labor and employment lawyer to make sure your policy provides you with the broadest scope of protection while not infringing on an employee’s rights.
While I do think that comments related to “mutual aid or protection” should be protected, the way information is communicated in social media is far different than traditional “water cooler” conversations. As a result, when it comes to social media, a company’s legitimate business interests in protecting its image, brand and confidential information should be more strongly considered.