As employees become younger and more tech-savvy, the chances of the majority of your workforce using Twitter, Facebook or other social media goes from being a possibility to a near certainty. This also increases the chances of having an employee take to social media to complain about their wages or employment conditions - an action you are unlikely to appreciate. But before you take action to terminate the employee or even to ask him/her to remove the posts, you should know that the National Labor Relations Board (NLRB) is becoming more and more likely to see social media commentary as protected speech, thereby preventing employers from taking action against employees who complain about their employers online.
Take, for example, the case of Chipotle Servs., LLC, N.L.R.B. Case No. 04-CA-147314 (decided March 14, 2016). In Chipotle, an employee was using Twitter to complain about working conditions such as being forced to come to work on a snow day, and wages of Chipotle's employees. The wage-related tweet was in response to another Twitter user who happily commented about free Chipotle burritos, to which the worker replied that "free" was really at the expense of the Chipotle employees, most of whom were paid only $8.50/hour. Unsurprisingly, Chipotle was not pleased, and the employee was asked to delete the tweets, which he did.
The NLRB, however, determined that the tweets were protected by Section 7 of the National Labor Relations Act, which guarantees employees the right to "self-organization, to form, join or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . ." 29. U.S.C. Section 157. The Administrative Law Judge (ALJ) determined that the tweets were to be considered a "concerted activity" entitled to protection. This was true despite the fact that no other Chipotle employees had shared or otherwise commented on the tweets of the individual employee.
The takeaway here is that what you see as a disparaging act via social media may, in fact, be considered lawful and protected behavior among your workforce. Before you act against an employee who you view to be disparaging your company online, you should ensure that you are not complicating the matter by going against the regulations of the NLRB.
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Frequently Asked Questions
Q: What should employers know about employees' use of social media to complain about work conditions?
A: Employers should be aware that employees' complaints on social media about their wages or work conditions are increasingly viewed as protected speech under the National Labor Relations Act. Actions against such employees could be legally challenged.
Q: What was the significance of the Chipotle case regarding social media and employee rights?
A: In the Chipotle case, the NLRB ruled that an employee's tweets complaining about wages and work conditions were protected as "concerted activities" under Section 7 of the National Labor Relations Act, despite the employer's request to delete the tweets.
Q: Can employers take action against employees for social media posts complaining about the workplace?
A: Employers need to exercise caution before taking action against employees for social media posts. Such posts may be considered protected if they pertain to workplace issues like wages and conditions, even if they seem disparaging to the employer.
Q: What does "concerted activity" mean in the context of the National Labor Relations Act?
A: "Concerted activity" refers to actions by employees to band together to improve their pay or other working conditions, whether through social media or other means. Such activities are protected under Section 7 of the National Labor Relations Act, meaning employers cannot legally penalize employees for these actions.
Q: What precautions should employers take before addressing negative social media posts by employees?
A: Before addressing such posts, employers should consult with legal counsel to ensure they are not infringing on employees' rights to engage in protected concerted activities. This precaution helps avoid potential legal repercussions.
Q: How can employers differentiate between protected and unprotected employee speech on social media?
A: Employers should evaluate whether the social media activity is related to group activity among employees concerning employment issues, which would likely be protected, versus personal grievances or inappropriate behavior that does not relate to workplace rights or collective bargaining.
Q: What implications does the NLRB’s stance on social media have for company policies?
A: Company policies regarding social media use must align with NLRB regulations that protect employees' rights to discuss work conditions publicly. Policies that are too restrictive could be challenged legally.
Q: How can employers legally monitor social media activity without violating employee rights?
A: Employers can monitor social media for compliance with company policies, but they must not infringe on protected activities such as discussions of wages or work conditions. Clear guidelines should be established that respect both the employer's rights to protect its business and the employee's rights to free expression and concerted activity.
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About Ali Oromchian, Esq.
Your Healthcare Lawyer
Ali Oromchian, JD, LL.M., is a leading legal authority in dental law and the founding attorney of Dental & Medical Counsel, PC, with over two decades of experience. His deep connection to dentistry comes from his wife's nearly two-decade-long career as a pediatric dentist.
This personal insight fuels his dedication to empowering dentists to navigate their legal challenges and achieve their practice goals. In doing so, Ali has helped thousands of doctors open their practices while maintaining legal compliance.
Ali is frequently quoted and contributes articles to dental publications, including the California Dental Society, Progressive Dentist, Progressive Orthodontists, Dentistry Today, Dentaltown, and The New Dentist magazines, further showcasing his commitment to the dental community.
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