4 December 2012
To Post or Not: Social Media and Workers’ Rights
Whether it is over a cup of coffee with friends at the local Starbucks, in a crowded lunch room at work, or on a coworker’s Facebook wall, employees are talking about their jobs, especially to one another. New trends in modern technology, such as the recent explosion and popularity of social networking sites like Facebook and Twitter, continue to constantly change the way employees can engage, share, and voice their work related concerns. According to the National Labor Relations Board (NLRB), an independent government agency charged with mediating disputes between management and labor unions, this new trend has become an important reminder that sometimes harsh criticism by employees is protected by federal law at work, at home, and now on the Internet. Although social media provides another forum for employees to exercise their protected collective activities, such as share complaints or address concerns to improve working conditions and pay, employers must make sure newly developed social media policies give due consideration to employees’ rights that are protected under the National Labor Relations Act (NLRA).
The New York Times recently published that under the NLRA, “employees have the right to join together, with or without a union, to exercise their protected collective activities to share complaints, address concerns with employers, and negotiation to improve their working conditions and pay.” The NLRA also protects employees’ rights to discuss work-related issues with other employees that was first made into federal law back in 1935. Basically, criticism of an employer’s practices about wages, hours and working conditions is protected no matter how it is expressed, as long as it is ‘protected, concerted activity.’ The NLRA says that “protected” is any statement about wages, hours or working conditions, and “concerted” means the employee’s statements were engaged in with or on the authority of other employees. Workers need to be aware that statements made through this type of forum have to be directed to other employees or to the company on behalf of the employees – not just personal gripes. However, employers need to understand that it doesn’t matter where or even how the employee makes these statements as long as it is “protected” and “concerted”. As popular social media sites like Facebook and Twitter continue to influence the way co-workers communicate on the job and outside the workplace, companies feel they do have the right to legally monitor their employees’ activities online, in order to ensure a most professional and lawsuit-proof workplace. “Bosses can penalize employees for what they deem as “inappropriate” post, videos and pictures on social-networking sites, even if a worker uses those sites during non-working hours”, states Lewis Maltby, author of the workplace rights book, Can They Do That? Though the most frequently cited justification for workplace monitoring is to prevent employee theft, sabotage, and violent incidents on the job, companies have also voiced concerns that they run huge risks with employees leaking “trade secrets” or other confidential and proprietary information about their people, products, and services to outside competitors online. In his book, The Naked Employee, author Frederick Lane, a workplace expert on the impact of technology and society, points out “employers are increasingly more interested in hiring employees who will not expose the company to additional costs and liability, while not hiring employees who will increase their cost through negligence, misconduct, and wrongdoing” (28). But the biggest threat companies are now beginning to fear is the line between an honest online discussion that may lead to defamation of a company, which can be blurry in certain situations,...