Many people, including lawyers, assume that as an employee you can be fired for your social media activity. This is wrong.
Whether it’s Facebook comments, Instagram posts, or tweets on Twitter, they all may be protected speech under the National Labor Relations Act. People make social media posts all the time. Oftentimes, their friends on social media are also work friends. Work friends who talk about work on social media may be protected from being disciplined or fired.
Employers cannot discipline or fire employees for certain social media communications
Section 7 of the National Labor Relations Act prohibits employers from disciplining or otherwise retaliating against an employee who discusses his/her conditions of employment with other employees. For example a Facebook or Instagram or Tweet about wages, benefits, work assignment, work schedules, or work hours are all protected speech. The NLRB protection for workers’ right to talk about work condition even extends to networking sites like LinkedIn and blogs.
What is the test for a legally permissible social media policy in the workplace
Many employers think it’s a good idea to have work policies that regulate social media activities for employees. This makes sense but can sometimes run afoul of the NLRB.
Here is the test for whether or not a company’s social media policy is legal:
1. A rule is unlawful if it explicitly restricts Section 7 activities.
2. If the rule does not explicitly restrict protected activities, it will violate the NLRA only upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
These are some examples of how employers can run afoul of Federal law when they try to control workers’ use of social media.