Employee handbooks are commonly saturated with limitations imposed by employers, who do everything in their power to quash any negative writings and/or speech about the company or its personnel. A company will typically draft rules prohibiting an employee from speaking publicly about a company in a negative light. This has recently translated to the world of social media, expanding to language that was usually forbidden in the office kitchen or by the water cooler.
A current social media policy will typically contain language fashioned on an employer’s prohibition of any speech that disparages managers, co-workers or the company itself. A violation of social media policy can even rise to the level of justifying termination. However, it looks like the National Labor Review Board (NLRB) has something to say about this shift in its recent advisory based on several rulings, including one in the case against of a not-for-profit corporation called Hispanics United of Buffalo. In essence, labor regulators have declared many such blanket restrictions on speech illegal. The NLRB says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.
In that case, the New York Times reported that a caseworker threatened to complain to the boss that others were not working hard enough. Another worker, Mariana Cole-Rivera, posted a Facebook message asking, “My fellow co-workers, how do you feel?”
Several of her colleagues posted angry, sometimes expletive-laden, responses. “Try doing my job. I have five programs,” wrote one. “What the hell, we don’t have a life as is,” wrote another. Hispanics United fired Ms. Cole-Rivera and four other caseworkers who responded to her, saying they had violated the company’s harassment policies by going after the caseworker who complained.
In a 3-to-1 decision last month, the NLRB ruled that the caseworkers had been unlawfully terminated. It found that the posts in 2010 were the type of “concerted activity” for “mutual aid” that is expressly protected by the National Labor Relations Act.
In addition to ordering the reinstatement of various workers fired for their posts on social networks, the agency has pushed companies nationwide, including giants like General Motors, Target and Costco, to rewrite their social media rules.
The advisories and rulings have collectively expanded the definition of “concerted activity,” which is derived from a law that was enacted in the industrial era, principally to protect workers’ right to unionize, and now is being applied it to the digital activities of nearly all private-sector workers, union and nonunion alike.
Personally, I feel like this is a bold step, but an important one. Workers should feel free to express their opinions of the workplace environment between one another without fear of punishment in the office or in the steam of social media.
As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.