Restricting Employee Online Activity? Be Careful

Professionals take great pains to develop a positive reputation. Consequently, like all employers, many professionals monitor employee online activity to ensure that it adheres to internal policies and ethical standards.  At times, employers may be justified, or even expected, to take action to limit online activity, such as when an employee makes defamatory statements that could be attributed to the employer.  On the other hand, however, employers must take care not to infringe upon an employee’s statutory rights to voice legitimate criticism of their employer or to engage in activity to improve the circumstances of their employment.  Doing so could violate federal labor laws. Just ask the NLRB.

The National Labor Relations Board recently issued a ruling addressing an employer who took retaliatory action against employees for Facebook activity.  A server and bartender at a sports bar discovered that the server was owed additional state income taxes and attributed the error to the employer.  The employee then posted a Facebook “status update” stating that the employer failed to file the paperwork correctly, causing her to owe additional taxes. The second employee clicked the “Like” selection on the post, showing his support for the server’s comment.  When the employees reported to work later that week, the employer terminated them for an alleged lack of loyalty.  The employer justified its termination based on its employee handbook, which prohibited the employees from making defamatory statements against the employer.

The employees subsequently filed an action against the employer under the National Labor Relations Act.  The Act provides employees with a statutory right to act together to improve the terms and conditions of their employment.  Specifically, under Section 7 of the Act, employees have the right to self-organization, to form or join labor organizations, and to engage in collective bargaining.

In analyzing whether the employer violated Section 7, the Board held that the employees’ Facebook activity was a protected concerted activity to improve the circumstances of their employment and thus fell under the scope of the statute.  Further, the Board determined that the comments were not defamatory because there was no basis to believe that the comments were maliciously untrue.  Because the Facebook post was protected under the Act, the Board determined that the employer’s decision to fire the employees constituted an unlawful attempt to chill the employees’ exercise of their rights.  Accordingly, the Board ordered the employer to revise or rescind any company policy restricting lawful criticism of the employer online, and to offer full reinstatement of the employees’ positions, together with compensation for lost earnings.

Employers have a right to maintain discipline in the workplace, and to limit employee activity which disparages the firm or unfairly damages its reputation.  However, these rights must also be balanced against the right of employees to communicate for the purpose of mutual aid or protection.  If the employees’ online activity is truthful and shows no evidence of malice, employers should proceed cautiously before taking any disciplinary action.  Employers who fail to respect this boundary of protected employee activity may expose themselves to liability for violating federal labor laws.


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