Author: Hans & Associates, P.C.
Technological advances like social media present their own unique legal problems and there is always a gap between innovative changes and laws catching up with them.
The question arises as to what social media communications about an employer or employment situation are protected and considered concerted activity? Concerted activity involves employees airing grievances with each other about working conditions and employers’ treatment of employees. Under the law, employees have this right. But where is the line drawn between that activity and damaging an employer’s reputation?
In January 2012, the National Labor Relations Board (NLRB) released a memorandum addressing a number of social media cases within the past year. The memorandum notes one particular case where the NLRB ruled the employer’s termination was illegal. The employer terminated an employee for her comments on Facebook about her job change that she believed was unfair because she was the second highest producing sales employee and the employer shifted her to a different type of sales position that was less remunerative. Despite the fact that her discussion was on Facebook, airing grievances among employees was a protected activity. The employer had a rule that prohibited employees from disparaging the employer in any media and the NLRB found that rule to be unlawful.
The NLRB also cited other cases were employee comments on Facebook legally warranted termination based on the nature of and the circumstances surrounding the communication.
As an employer, it is wise to seek legal counsel before taking action toward employees who engage in work discussion using social media. Employment and social media networking is still an emerging legal area and an experienced New York employment law attorney can provide valuable legal guidance to help avoid liability exposure and disputes.