Employee Free Speech on Facebook

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. https://www.nlrb.gov/rights-we-protect/protected-concerted-activity

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. https://www.nlrb.gov/reports-guidance/general-counsel-memos

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies:

  • Immediately delete any policy in your employment handbook that prohibits employees from discussing their wages.
  • Don’t terminate an employee for “disparaging” the company without prior legal advice from a qualified employment attorney.
  • Add a social media policy to your personnel manual that meets NLRB requirements. https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media
  • Revise your confidentiality policy so that it does not give employees the impression that discussing their wages, hours or other terms and conditions of employment freely with one another is prohibited.
  • Don’t fire someone for rude or disrespectful behavior towards a supervisor (what we used to call “insubordination”) without significant documentation and clarification of what actually occurred and why it doesn’t violate the NLRB’s rules.
  • Don’t completely prohibit your employees from speaking to the media. You can instruct them that only one person speaks for the company (and identify that one person) and if an employee is interviewed, it must be clear that he/she is only expressing personal opinions.

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