New York Employment Law Blog

Sunday, March 19, 2017

Employment Obligations and Social Media

Social media has become a big part of many employees’ everyday lives. It is accessible at virtually all times, and there is no limit to the information that individuals can share and consume. Social media and employment obligations occasionally butt heads based on what employees post or share on their personal (or even business) pages.

There have been situations where employees have lost their jobs due to what they have posted or shared on social networking sites. In reviewing these stories, you may have wondered—can employers really terminate an employee based on what they post on social media? Do employees have any protections to prevent this type of termination? An employment law attorney can help you answer these questions.

Employee Rights and Social Media

Employees have the right to freedom of speech, which means that their off-duty conduct on social media may be protected under both federal and state laws. This often includes posts related to politics and religion, but it can include a variety of other subjects as well.

When the posts involve the employer, however, the question become less clear. However, the National Labor Relations Board (NLRB) has provided employees with certain protections when it comes to posting on social media about their jobs or employers. In particular, the NLRB has associated many social media postings with protected “concerted activity” in which employees are legally allowed to participate.

What is Protected Concerted Activity?

Federal labor laws regulate the relationship among unions, employers, and employees. They protect employees who engage in “concerted activity,” that is designed to increase the working experience for the organization. These activities often center around the increase in pay or benefits, improve working conditions, growth of opportunities or efficiencies, and other workplace issues.

Employees that engage in these concerted activities are protected under federal law regardless of whether or not they are in a union themselves. This is true even in workplaces that do not involve unions as all.

Concerted activities include more than one employee’s concerns. For example, an employee that is complaining about the unfairness of his or her individual performance review is not engaging in concerted activity, but the employee that is commenting on how performance reviews are conducted for all staff is. Further, only those behaviors that are constructive, as opposed to violent, malicious, or reckless, are protected.

Social Media and Concerted Activity

Social media has provided employees with a unique platform with which to discuss their work-related grievances. Employees may be protected when they discuss work issues online in a productive and constructive way, particularly if other co-workers chime in on the discussion. When employees make these types of comments, employers cannot terminate their employment. However, when the employee makes unproductive or extremely personal complaints or comments, the employee may not enjoy the same protections.

Keep in mind that in most employment situations, staff and employers have an “at will” relationship. That is, the worker can stop work at any time, and the employer can terminate the employee for any reason that is not prohibited by law. The NLRB protections for social media are often the exception rather than the rule.

If your employment has been negatively affected based on a post on social media, you may still have legal remedies available to you. Contact us for more information.


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