Employees who use Facebook to rail about their bosses could soon be updating their statuses to “is looking for work.”
Since 2009, the National Labor Relations Board has reviewed 129 cases involving comments made by employees on social media sites, according to a study recently released by the U.S. Chamber of Commerce. In one of the most recent cases, the NLRB determined that Wal-Mart did nothing wrong when it fired a man who posted on Facebook about his supervisor’s “tyranny.”
Workers in these cases claim that their online vent sessions ought to be protected under Section 7 of the National Labor Relations Act, which grants employees the right to discuss wages and working conditions in order to organize collective actions. Employers, on the other hand, say negative Facebook posts and tweets amount to public disparagement, not to mention good grounds for termination.
The problem stems from the way social media sites teeter between public and private. Marshall Babson, a partner at Seyfarth Shaw LLP and a former member of the NLRB, told Bloomberg in an interview, “Employees in the old days gathered at the water cooler. Social media is the 21st-century analogue. Employees use this device to air grievances and solicit opinions from employees. That’s why it’s protected.”
But while certain online conversations may indeed be the equivalent of water cooler talks, with high privacy settings substituting for low voices, others are more akin to shouting on the street in front of the office. Facebook’s notes and messages provide a good way to communicate with a select group, but its status updates, like tweets, are generally open to a wide audience of friends and friends of friends.
There are good reasons for employers to be concerned about workers using publicly accessible forums as their virtual water coolers. The most obvious is that negative posts may be bad for business. Even more problematic, however, is the potential for infringements of confidentiality. In many industries, discussing working conditions might mean bringing up private information about trade secrets, product launches or clients.
In some cases, workers’ online discussions could even create legal problems for their employers. Publicly traded companies, for example, are required to follow strict regulations when releasing information that may materially affect their stock’s price. An indiscreet post on an employee’s Facebook page could put a company on the wrong side of securities laws by allowing a select group of people – that employee’s Facebook friends – access to certain information before it is available to other investors.
Employers have both a right and a responsibility to control the flow of information to the public. Since employees have no need to communicate with anyone other than co-workers for the purposes of organizing, online communications that reach beyond that group should not be protected.
Curiously, in its decisions so far, the NLRB has focused more on the content of online comments than the audience. In the Wal-Mart case, for example, the NLRB based its argument on the claim that the employee hadn’t been seeking “to initiate or induce co-workers to engage in group action” but had instead intended to “express only his frustration regarding his individual dispute with the Assistant Manager.” In a public forum, however, even attempts to engage in group action could be unnecessarily damaging to employers. The Wal-Mart employee’s comments were visible only to his Facebook friends. But while many of those friends were co-workers, others were not, placing the discussion squarely in the newly created borderland between public and private.
The current NLRB has not given us much reason to expect rational or even-handed application of labor law. But given the volume of cases dealing with social media, I have some hope that it will at least formulate a few common-sense guidelines on this issue, if only to save itself headaches. Those rules should distinguish between communications that are well-targeted to co-workers and those that are not, and also those which address workplace issues without either divulging confidential data or veering into actionable bias, slander, libel or disparagement.
Regardless of what the NLRB does, these cases ought to remind everyone that talking in cyberspace is different from talking over the phone, in someone’s home, or even at a bar or restaurant. If you don’t want your boss reading your deepest feelings about him or her, think before you tweet.
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