The Role of the NLRB (National Labor Relations Board)
Employees today have found an advocate in the NLRB, an organization whose primary role is to mediate conflict between employees and employers. The NLRB’s official position is that you as an employee have the right to discuss what you want with whomever you want in relation to your employer — within certain parameters. Specifically, if you are speaking out to clarify policies, gather support about issues of concern, solicit other employees’ feedback or similar progress-related (“concerted effort”) online conversations about working conditions, your employer can take no action against you. However, if your online conversations are found to be singularly ranting, overtly offensive or harassing, discriminatory or prejudicial, you may find your job at stake in court.
Important Facts About Employee Social Media Use
Regardless of your specific job title, work duties or level of education, in today’s social media-driven workplace it is important to understand what you can and cannot say about your work life over social media. In addition, whether you are an executive with a masters degree in management or are just starting your first job in high school, learning what your employer can and cannot charge you for is critical to shaping your social media use at work and in your leisure time. If you do find yourself in a situation where your employer is threatening to take legal action against you for your online communications, here are some important facts to keep in mind.
- Your employer has the burden of proof. If your employer asserts that you are acting as a “lone wolf” to disparage or malign another employee, your boss or the company or brand, they must prove their allegations before you can be charged.
- You cannot be prosecuted for legal online activities you undertake while not on duty. If posts you make during non-work hours are legal and are not related to your work duties, your employer cannot hold you liable.
- Your employer cannot prosecute you for broad-brush “offenses.” The NLRB has pushed back against companies that create too-broad social media use policies. If your employer’s social media policy includes such broad language as to rule out most types of work-related online conversations, their case may not stand up in court.
- Your state determines whether your employer has access to your social media accounts. Six states have now made it illegal for employers or recruiters to ask employees or candidates for their social media account passwords. Be sure to know your state’s policy on this issue before handing over your passwords to your employer.
What to Do if Your Employer Prosecutes
Regardless of whether your employer has a case or not, this may not prevent them from bringing a lawsuit against you in regard to your social media activities. If you do find yourself in a legal situation that stems from work-related conversations online, here is what you should do.
- Contact the NLRB and explain the situation to find out how strong your employer’s case is.
- Speak with your employer to find out if there is a way to resolve the issue out of court.
- If more than just yourself is named, convene with affected others to discuss group representation.
- Locate a qualified attorney and hire representation of your own to fight the charges.
Ultimately, responding promptly and definitively to any social media-related legal charges levied against you by your employer can show good-faith effort to resolve the situation quickly and for everyone’s benefit.
Andy Chung uses his masters degree in management to head up the HR department at a mid-sized technology company. He also leads monthly lunch-and-learn seminars for employees on social media etiquette and best practices.