Employee Social Media Rights
Although employers have the right to monitor their employees’ use of various social media sites during on-duty hours, they don’t have the ability to limit what individuals working for them can post online. However, much as freedom of speech is protected by our constitution, the opinion an employee posts online can significantly affect their status at the work place – and that is where the question of employee social media rights comes in.
Freedom of Speech
The constitution is very clear that every person enjoys the freedom of expression. However, that law only applies to an individual’s interaction with government institutions. When it comes to private companies, one can be fired for expressing an opinion that violates their employers civil rights.
However, there are exceptions to this law. When employees come together to vent out their opinions about a particular issue, then they are protected by the doctrine of “protected concerted activity”.
What Protected Concerted Activity Entails
The protected concerted activity law gives employees the right to discuss, criticize or even disagree with their employer’s policies (including on social media). The word “discuss” is however key. If an individual starts complaining on media about their workplace and how they dislike certain policies solely for the purpose of letting out frustrations without any effort to get other employees to share in that discussion, then that’s not protected under “protected concerted activity”.
A discussion has to take place. That is, other employees must also voice their concerns and engage in an exchange in order for that to qualify as protected concerted activity. However, if one authors a status update or tweet and no other employee joins in, it is treated as a personal issue and therefore one may not enjoy any special protection.
Concerted Activities
An activity is concerted if only it involves several employees’ concerns. In that case, an employee who complains after consulting with other workers, and one who shares out on issues that affect their co-workers may enjoy this protection. On the other hand, an employee who takes to social media to complain on an issue that does not affect other workers (e.g. issues of performance evaluation) is not protected. As the National Labor Relations Board (NLRB) puts it, “personal gripes” are not protected.
Likewise, even if employees act in a concerted way but they behave in a malicious or reckless manner, they will not be protected. Examples of incidences where concerted behavior may be disqualified include when the employees disclose company trade secrets or resort to violent behavior.
Getting Legal Assistance
The question of employee social media rights is quite extensive and complicated. So if you are an employee who believes you have been wrongfully fired or an employer who is considering getting assistance on such a matter, it is important to consult an attorney. In addition, you may wish to refer to the NLRB guidelines on this issue.
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