Los Angeles is the engine that drives what is cool, hip and trendy, and that extends to social media. “Making it” in this entertainment-fueled economy seems to be just as much about how many followers you have on Twitter or Facebook as the size of the box office for your latest film.
Everyone wants in on the action and because of social media they can be. The innovative YouTube Space L.A. even offers free resources and facilities to help any of us develop digital content and deliver it to the masses. We all can be the star of our own show featuring us or at least make a funny cat video with really good lighting.
And, we can say whatever we want, whenever we want, right? Wrong, especially when it comes to posting about your working environment.
A recent National Labor Relations Board decision affirmed as protected activity what many might view as simply “venting” about the workplace online, but there are still limits and, unfortunately, lots of confusion. The NLRB needs to clarify its position on social media freedom of speech because the problems will grow as social media continues to evolve.
Through social media, workers can now make comments regarding their supervisors and instead of it being considered insubordinate, they can rely on long-established protected topics such as working conditions, wages and benefits, and shoehorn their comments into that protected box. Using social media allows such comments to be distributed to the masses in a much different way than ever before. To be clear, they can complain about the performance of their supervisors, but they can’t threaten bodily harm. They also can’t discuss anything considered private such as personal medical information or company trade secrets.
The new rulings are confusing to employers who need better direction from the NLRB with what are seemingly contradictory decisions.
For example, one company’s social media policy stated: “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.”
That policy was found to be unlawful, according to reports issued by the NLRB’s general counsel. Yet, the NLRB approved the social media policy of another large national employer with significant presence in Los Angeles that prohibited “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
Too broad
The difference between the two cases is in the details. Federal regulators are opining and ordering that some social media policies are too broad and cannot be legal grounds for termination of employment. Employers must now be very specific with their employees about what they are not allowed to discuss about the workplace through social media. The more specific the company’s policy, including confirming that it is not limiting employees’ rights to discuss working conditions, wages and benefits, the less likely it will be challenged.
It might seem obvious not to share extremely personal information about co-workers and trade secrets, but that information does get posted and employers must address the possible infractions in their policies.
It’s clear that the benefit of any doubt will be a ruling in favor of employees versus employers as social media continues to evolve, particularly in California, and businesses should take notice. California is one of six states where employers can’t ask their employees for social network passwords. More states are likely to follow suit soon.
Ultimately, employees still have to be smart and use common sense when it comes to social media. Yes, social media is free and gives us all an enormous opportunity to communicate our likes and dislikes, but that freedom can have a price – and it could be your job.
In the end, employees should be mindful of posts on any social media sites. Indeed, most posts are not protected, but certain workplace-related statements might be ultimately viewed as discussions about working conditions, wages or benefits. Similarly, employers should also be mindful of what might have once been reactionary responses to social media posts and instead evaluate the content of the posts.
But, ultimately, it is the job of the NLRB to create rulings that are clear to eliminate confusion and protect workers. Employers are on the frontlines trying to handle the fallout of social media behavior and comply with unclear and potentially conflicting rulings and regulations. That’s the real key to protecting everyone in work-related discussions.
Michelle Lee Flores is a partner in the L.A. office of Fisher & Phillips LLP and represents employers in all aspects of employment law.
