How To Legally Police Employee Gripes On Facebook

If your company’s employees are active social networkers, the viral nature of status updates and links can create a human resources nightmare – - especially when those employees are disgruntled.

How far can a company go to prevent or discover problematic posts?

Beware of Gag Orders

Bad news travels fast, particularly online.

Even so, companies should be careful in adopting broad policies that forbid employees from disclosing their complaints publicly.

The National Labor Relations Act (the “Act”) prohibits companies from interfering or restraining employees in their exercise of certain “concerted activity.”

That includes the right to self-organize, or join unions, and frequently involves public communications about employee grievances.

Note that the Act’s protections are not limited to unionized workplaces – - most employers are included.

In the National Labor Relations Board‘s eyes, “concerted activity” can mean virtually any group discussion, meeting or action relating to working conditions, pay, leave, or a wide range of other employment-related matters.

The NLRB recently released a report on its social media cases (some involving firings over Facebook posts), which illustrates the ongoing struggle to define what a “concerted activity” is when it comes to social networking.

In a number of these cases, the NLRB found in favor of the employee because the employer went too far in restricting employees’ ability to share legitimate grievances with co-workers via Facebook statuses and other posts.

A commonly challenged policy is one barring employees from disparaging management.

Although the company may have a legitimate goal in adopting such a policy, such as to minimize injury to the company and individuals, the NLRB generally finds that such blanket restrictions improperly impinge on employees’ rights.

Employees Can Still Cross The Line

Only “concerted activities” are protected under the Act, so employees don’t have an unfettered right to bash employers on Facebook

The NLRB has ruled against employees when their online posts were deemed to be “mere gripes” specific to their individual interests, rather than protected group activities.

In those cases, the NLRB did not perceive the posts as seeking to engage co-workers in a dialogue about working conditions, salaries, or other group concerns.

Even when the employee’s communications dealt with “concerted activities,” employees could still be disciplined or terminated if the posts were “so disloyal, reckless, or maliciously untrue” that they lost protection under the Act.

How Private Are Employee Communications?

How can companies find out what their employees are up to?

It’s common for companies to advise employees that their use of company computers, phones and network are subject to monitoring and that, consequently, employees have no expectation of privacy when communicating on company equipment and on company time.

But is it really true that employees have no privacy at work?

When it comes to certain web-based communications, like Facebook email, employees have more privacy rights than you may think.

This is because Facebook communications, while perhaps accessed through a company computer, are stored on Facebook servers, not on the company network.

As such, accessing employees’ Facebook messages without explicit authorization could run afoul of the Stored Communications Act.

The SCA makes it illegal to intentionally access, without authorization, email stored on servers.

Penalties for violating the SCA include criminal sanctions, civil liability, and the possibility of punitive damages.

In cases involving other web-based communication services, courts have held that a general “no expectation of privacy” policy was not sufficient to meet the “authorization” requirement of the SCA. It’s likely that Facebook email would be treated the same way.

Moreover, as highlighted in the U.S. Chamber of Commerce’s recent survey of NLRB social media cases, surveillance of Facebook pages violates the National Labor Relations Act if the monitoring stifles employees’ right to engage in protected activity.

The NLRB has generally held that the employer has not violated the surveillance rule when legitimate friends have given printouts of Facebook posts to management.

However, unauthorized or deceptive attempts to access private posts can violate the surveillance rule.

Bottom Line: Be Careful Out There

The outcomes of social media cases depend on a variety of case-specific factors, such as the policies in play, employer enforcement of those policies, and the method and content of the employee’s communications.

Companies should tread very carefully, as the definition of “concerted activity” and the distinction between private versus public posts may shift as more communications take place over Facebook and similar web-based platforms – and as the technology continues to develop.

Tina Hsu is an attorney with Shulman, Rogers, Gandal, Pordy & Ecker, P.A., practicing the areas of employment, intellectual property and commercial litigation.

Lead image courtesy of Shutterstock.

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