Employees often discuss various workplace issues online with coworkers or publicly post information on social media platforms. This can create problems for an employer, especially if an employee discloses a trade secret or identifies themselves as an employee of your company when posting a potentially controversial statement. This may also cause problems if an employee uses social media to harass another employee.

These social media conversations may occur on- or off-duty and may be shared with employees, former employees and/or the general public. Some of the disciplinary issues that often arise include:

• Whether the social media conversation is protected
• Whether the social media conversation is used to harass or discriminate against other employees
• Whether any privacy issues are involved

Protected Conversations

Employees have the right under both the California Labor Code and the National Labor Relations Act (NLRA) to discuss their working conditions, pay or other work-related issues. While your initial reaction might be to discipline or terminate employees who use social media to criticize your company, you will need to first consider whether the employee's conversations are protected.

• Exercise caution and consult with counsel when considering adverse action against an employee due to comments he/she made on any Internet or social media forum.

California law prohibits employers from disciplining employees for discussing their wages and working conditions.1 In the context of social media usage, this means that if an employee on Facebook asks co-workers how much they earn, the employer cannot discipline the employees involved in that conversation in most circumstances. For more information, see Protection for Discussing Working Conditions.

Furthermore, employers must remember that whistleblower protections shield certain statements that employees make. For example, the California Labor Code prohibits employers from retaliating against any employee who discloses information to a government or law enforcement agency (or to internal individuals with authority over the employee or authority to investigate, discover or correct violations) about what he/she reasonably believes to be a violation of state, federal or local statute, rule or regulation.2 For more information, see Whistleblower Protection.

Certain sections of the NLRA also affect employer social media policies and disciplinary practices, even in private, nonunion workplaces.

Sections 7 and 8(a) of the NLRA prohibit union and non-union employers from restricting or chilling the rights of employees to engage in concerted activities, such as discussing wages, work conditions and other terms of employment.

An employee who uses social media to complain that his/her wages are too low, that the employer is violating labor laws or to discuss other conditions of employment may enjoy NLRA protection and you may be prohibited from disciplining that employee. For instance, if an employee goes on Twitter to complain about bonuses and other employees join in on the Twitter conversation, that social media activity may be protected under the NLRA.

The National Labor Relations Board (NLRB) has taken action against employers for terminating employees who posted negative comments about supervisors or about the company on the employee's personal social media pages (such as Facebook).

However, an employee who simply rants about a supervisor with no complaint about improving working conditions may not be protected.

The NLRB has also taken issue with policies relied on by employers for disciplining employees’ social media use.

Under current NLRB precedent, an employer rule is presumptively unlawful if it has “a reasonable tendency to chill employees” from exercising their rights under the NLRA.103 The NLRB interprets a challenged rule from the perspective of an employee contemplating engaging in protected activity. Consistent with the perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the rule is presumptively unlawful, even if a contrary, noncoercive interpretation of the rule is also reasonable. Employers may rebut the presumption by proving that the rule advances a “legitimate and substantial business interest,” and that the employer is unable to advance that interest with a more “narrowly tailored” rule.;

This balancing test only applies to facially neutral policies. Policies that specifically ban protected activity or are promulgated in response to protected activity are still unlawful. In addition, it is unlawful for an employer to apply facially neutral policies against employees engaged in protected activity.

For information on social media and employer policies, see Social Media and Employer Policy.

Examples of Protected Social Media Conversations

In the following situations, the NLRB found that the employee’s social media conversations were protected and that the employer should not have disciplined the employee:

• An employee’s Facebook post complained about not getting paid on time; several other employees joined the conversation in the post.
• Employees responded to a co-worker post that the employer had incorrectly withheld taxes from their paychecks. One employee left a Facebook comment; the other employee clicked the “Like” button. The Facebook comments included profane language criticizing the owners.4 The Second Circuit upheld the Board's decision.5
• Five employees made Facebook complaints about staffing levels and that the employer was not doing enough to help its non-profit clients.6
• Vulgar Facebook postings about a manager were made prior to a union election, but the postings also encouraged voting for the union.7
• A car salesman complained on Facebook that serving hot dogs and water at a promotional event would negatively affect commissions.8

Examples of Unprotected Social Media Conversations

In other situations, the NLRB found that employee social media conversations were not protected and that the employer’s discipline of the employee was lawful:

• In a case involving threatening activity, the NLRB found that employee action was not protected. An employee asked to leave early, but was not allowed to under the attendance policy. The employee posted that he “was about a hair away from setting it off.” No employees responded to the post, and he claimed it was venting. The employer fired the employee for inappropriate, threatening and violent statements.9
• Two employees of a neighborhood center engaged in a Facebook conversation detailing specifically how they would act in detriment to the employer’s interests by teaching kids how to “graffiti up the walls,” “have parties all year” and “field trips all the time to wherever ... we want.” The center rescinded these employees’ offers for employment for the next school year. The NLRB ruled in favor of the employer, finding that the company did not have to wait for the employees to actually act on the insubordination, and that the employees’ egregious conduct had lost the protection of the NLRA.10

In light of NLRB’s broad interpretation of protected concerted activity and its scrutiny of employer policies, an employer should consider the following questions before taking any disciplinary action with respect to a social media post:

1. Does the post address wages or working conditions? Individual comments by an employee unrelated to working conditions would not be protected.
2. What is the context? Some individual posts may not appear to be protected, but in the context of a broader employee discussion, could be viewed as protected.
3. Does the post trigger an obligation to act? If the post can be properly construed as harassing or contributing to a hostile work environment, the employer may be able to address the issue and attempt to stop the harassment.
4. Who is doing the posting? Supervisors are not protected by the NLRA, but they may be protected by other laws (i.e., whistleblower laws).
5. What about the employer’s reputation? When an employer thinks about its social media reputation, it tends to focus on what’s embarrassing about the post itself. But, employers also should consider the social media ramifications if it disciplines the employee given the intense public interest in social media firings and the resulting NLRB scrutiny.

Furthermore, employer social media policies should not be so sweeping that they prohibit the discussion of wages or working conditions among employees. NLRA Section 7 disclaimers may be useful. Employers should consider specifically including language stating that nothing in the employer’s social media policy is intended to infringe on the rights of employees to discuss wages, hours or working conditions, although this disclaimer may not serve to protect an otherwise unlawful policy.

Harassment and Discrimination Issues

Social media usage by employees can also give rise to disciplinary issues if the social media posts violate your policies against harassment and discrimination. Unfortunately, social media gives employees another way to harass or discriminate against co-workers. For instance, not only can an employee harass a co-worker in person, but the employees can also post harassing comments about the co-worker during off-work hours.

Example: connect on a social media platform. Everything is fine at first. But after a while, one co-worker begins to post sexually suggestive messages to the other’s profile. They complain to management that the co-worker is harassing them online and during off-work hours.

Even though the conduct occurred off-duty and away from the workplace, if you know of the harassing or derogatory information or if the harassing employee was using employer- owned devices or accounts, you can be held liable.

If you know of the harassing or derogatory information or if the harassing employee was using employer-owned devices or accounts, you can be held liable.

Make sure that your anti-harassment and anti-discrimination policies clearly state that harassment, disrespectful or unprofessional conduct of any type will not be tolerated.

Also include language in your electronic media and Internet usage policies specifically stating that it is a violation of company policy to use the Internet (including social media sites) to sexually harass or discriminate against employees.

Privacy Concerns

California law broadly prevents employers from intruding into employees’ legal off-duty conduct. The U.S. and California constitutions also create privacy rights for individuals.

You can discipline employees if the off-duty conduct is illegal; if it presents a clear conflict of interest to the business; or if it adversely affects the employee’s ability to do his/her job. The issue arises as to how much privacy an employee has with regard to his/her personal social media accounts and the ability to obtain this information for disciplinary purposes, especially in light of legislation relating to employees’ personal social media accounts. For more information, see Restricted Access to Personal Social Media Account.

Example: A supervisor is friends with a female subordinate on Instagram and discovers a scantily clad picture of her at a party, beer in hand. Even though risqué photos posted on a person’s social media account page may reflect on an employee’s judgment, in many instances they are irrelevant to the employee’s work performance.

An employer can’t simply terminate an employee for a post or personal photos that the employer doesn’t like. The employer must take into account the individual’s rights to privacy and to engage in lawful off-duty conduct.

Employers should also be aware of medical privacy laws.

Example: A federal court found that an employer may be liable for Facebook comments one employee made about another employee’s medical condition. An employee, George Shoun, took time off work for a workplace shoulder injury. The employee who processed Shoun’s workers’ compensation claim posted information on her personal Facebook page discussing how long Shoun had been out on workers’ compensation and comparing him to an employee who had heart surgery but was back quicker. Shoun sued under the ADA, claiming the company deliberately disclosed his medical condition. The court allowed Shoun to proceed with his claim under the ADA.11

An employer can take steps to avoid invasion of privacy claims resulting from employees’ social media use:

• Limit the amount of information you collect about employees and implement measures to protect confidential information.
• Consider whether it is in your best interest to befriend a subordinate employee on a social media website.
• Refrain from viewing an employee's Facebook or other social media pages.
• If you can show a legitimate business purpose for investigating an employee, make sure your investigation doesn’t unlawfully invade that person’s privacy, and that it complies with state and federal laws.
• Use an experienced, internal HR manager to conduct any investigation and consult legal counsel before beginning the investigation:
• You can also consider hiring a third party to conduct the investigation. However, make sure the third party is either a licensed attorney or a licensed private investigator and follows all state and federal laws.
• Make certain that you follow all notice and disclosure obligations when conducting investigations.

• Employers should consult with counsel or an experienced HR professional when considering taking adverse action against an employee due to postings he/she made on the Internet or any social media forum.

1. Lab. Code secs. 232; 232.5