Get Out of My Face(book)!

By Leslie Austin / February 5, 2013 / Uncategorized No Comments

Are you a supervisor or an employer who monitors your employee’s Facebook posts? Perhaps you are actually “friends” with your employees? Have you ever taken disciplinary action (or wanted to) against an employee because of what they posted on Facebook?  You can do this because these people work for you and they are saying things about the Company, right? Well maybe, but you may want to take heed before proceeding.  Recently, employees supported by the National Labor Relations Board (NLRB) and the courts are telling supervisors and employers to “Get out of my Face(book)!!!”

Let me first provide you with a little pertinent background information. The NLRB is a federal agency charged with enforcement of a law called the National Labor Relations Act (NLRA). The NLRA provides employees, among other things, “The right to act together to try and improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the NLRB will fight to restore what was unlawfully taken away.”

This means there may be a dangerously fine line between an employee unlawfully disparaging the Company and an employee who is leading a group to discuss the terms and conditions of their working environment. Terms and conditions of a work environment can include, but are not limited to matters such as compensation, benefits, safety, etc.  If an employer crosses this line and takes action against an employee exercising lawful rights protected by the NLRA, an employee may sue or take the matter to the NLRB, and an employer can be exposed for back pay, fines/damages and reinstatement of employment.

Over the last couple of years, the NLRB has had involvement at some level in approximately 129 cases involving social media concerns. The issues most commonly raised in the cases before the NLRB alleged that employers had policies in place unlawfully restricting the employees’ NLRA rights via the use of social media and/or that an employer unlawfully disciplined or terminated employees over the subjects of their social media posts.  If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the NLRB will fight on the employee’s behalf to restore what was unlawfully taken away.

One notable company who has felt the force of social media decisions recently made by the NLRB was Costco. The Costco policy said, “Employees should be aware that statements posted electronically (such as online messageboards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”  The NLRB declared the Costco policy was overly “broad” and could be interpreted by employees as an action to prohibit employees from utilizing social media to discuss the terms and conditions of their employment. Many other recent NLRB rulings regarding Facebook postings, Tweets and other use of social media by employees has indicated that employer policies on the topic are overly “broad” and thus run afoul of the NLRA.

The new digital and social media era has ushered forth unprecedented volumes of communication now more available to an employee’s co-workers and supervisors than ever. With these extraordinary new platforms for communication also come unanticipated challenges such as these being reviewed by the NLRB. For now it seems the take home message as an employer tends to be that unless you are continuously forging ground on the social media frontier, you are well advised to get out of your employee’s Face(book).

Does your company monitor employee Facebook entries?  If so, what has been your experience?

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