Overview
A national labor board decision found that an employee’s use of Facebook — including clicking a “Like” button on a coworker’s post and adding a profane comment on a private page — was protected concerted activity related to a dispute over pay with the employer. The case resulted in the employer’s terminations being overturned and prompted scrutiny of broad workplace Internet and blogging policies in employee handbooks.
Key takeaways
- Social media posts about wages, hours, or other work conditions can be protected activity even if blunt or vulgar.
- Discipline or termination for social media conduct requires careful analysis of whether the activity was concerted and job-related.
- Overbroad handbook policies on Internet use or blogging can chill employee rights and draw enforcement scrutiny.
How it works
Federal labor protections generally cover "concerted activity" — actions or discussions by employees about pay, hours, or working conditions undertaken together or on behalf of coworkers. Courts and boards evaluate whether an online exchange relates to an ongoing workplace dispute, whether the communication was intended to involve coworkers, and whether it occurred in a public forum or on a private page.
Employers reviewing incidents should consider the context and whether the conduct was truly individual grumbling or part of a group effort to improve conditions. For further reading on business and workplace risk topics, see Business & Personal Risk Newsletter.
What it may cover (and what it may not)
Protected activity may include social media posts that discuss pay practices, benefits, scheduling, or other terms and conditions of employment and that are part of or linked to an ongoing work dispute. Private-group discussions that involve coworkers can also be covered if they relate to collective concerns.
Certain conduct remains unprotected, including true threats, intentionally false statements made with malice, disclosure of privileged business information, or posts that are purely personal and unrelated to workplace issues. For insight on small-business liability and related topics, see Small Business: Liability Insurance, NLRB Ruling, and Facebook Marketing.
Common mistakes to avoid
Immediate termination without a fact-specific review is a frequent error; employers should document the context, any prior related conduct, and whether the activity was concerted. Relying on overly broad Internet or social media policies in handbooks can unintentionally restrict protected rights and invite challenges.
Another mistake is treating all social-media criticism as automatically disqualifying; the tone matters less than the subject matter and whether coworkers are involved. Before taking disciplinary action, consult with employment counsel or HR to assess risks and to ensure progressive and well-documented responses.
Questions to ask an agent
Does our current employment practices liability insurance cover wrongful termination or claims arising from social media discipline?
Are our handbook policies narrowly written to address legitimate business needs without unduly restricting employee rights?
What training or resources can help managers evaluate social media incidents consistently and lawfully?
Next steps
Review your handbook language on social media and Internet use for clarity and narrow tailoring. Update disciplinary procedures to require a case-by-case analysis that documents the work-related context of any online activity before imposing severe sanctions.
Provide managers with guidance on recognizing protected concerted activity and establish a review process that includes HR or legal input when social media is involved. Consider reviewing relevant workplace risk resources and insurance options to ensure you have coverage aligned with potential employment practices exposures.
Frequently Asked Questions
Can an employee be fired for liking a coworker’s social media post?
Not always; liking a post that relates to a workplace dispute can be protected concerted activity, so employers should evaluate the context before disciplining.
Do handbook social media rules protect my business?
Some rules do, but overly broad provisions can chill employee rights and may be challenged, so policies should be carefully drafted.
What types of social media comments are clearly unprotected?
True threats, intentionally false statements with malice, and the disclosure of confidential company information are generally not protected.
How should supervisors respond when they see critical posts about the company?
Supervisors should document the posts, avoid immediate punitive action, and consult HR or legal counsel to determine whether the conduct is protected.