Many people in New Jersey and Pennsylvania have likely read or heard about people who have been fired because of their comments or posts on social media sites. The vast majority of working-age adults have social media pages on sites like Facebook, LinkedIn, Instagram, and Twitter. Modern employers do not have much trouble finding their employees online. However, what they can do with the information that they find depends on the types of posts that you make. The attorneys at Swartz Swidler can advise you about whether your social media and blog posts are protected and help to protect your rights if your employer has taken adverse job actions against you.
What are your rights in the workplace?
Employees who post on their own social media pages or in the comments sections of other people’s social media pages may have some limited protection under state and federal laws. However, the strongest protection that workers might have for what they post on social media comes from the National Labor Relations Board. The NLRB has determined that employers are prohibited from firing or disciplining workers for certain types of employment-related posts. Employers cannot terminate employees when they have engaged in protected concerted activity. This includes discussing or criticizing the employees’ employers for working conditions, pay, decisions, and employment policies with their coworkers. This form of protection is meant to protect the right of employees to join together to improve the conditions at their jobs.
What is a protected concerted activity?
Federal labor laws and the regulations that are enforced by the NLRB cover the relationships between management, unions, and employees. These laws protect workers who engage in concerted activities to improve working conditions, seeking pay increases, or resolving workplace issues. To be protected under these laws, employees are not required to belong to a union. In non-union workplaces, employees are protected from retaliation when they work together to improve the conditions in the workplace.
Activities such as online social media or blog posts are considered to be concerted only when they involve the concerns of more than one employee. For example, if you complain about your performance evaluation online, it is not concerted activity. If you talk to several coworkers about the system of evaluating employees and how it penalizes workers who speak out about safety concerns, it is concerted activity. However, personal complaints are not protected under federal labor laws.
In cases in which employees are engaging in concerted activities, they will not be protected if they engage in reckless or malicious conduct. For example, if you disclose your employer’s trade secrets or make threats against your employer online, you will not be protected if you are fired for doing so.
Cases involving social media posts
The NLRB has recently demonstrated interest in applying the protections for a concerted activity to employee posts and online comments. For example, one case involved an employee who was dealing with a dispute about his or her job performance, the company’s staffing levels, and how the company was providing its nonprofit services to its clients. The worker posted on Facebook and asked for his or her coworkers to provide input about the issues. Several responded with comments. Every person who participated in the conversation online was subsequently fired. The NLRB ruled that the employees had engaged in a protected concerted activity because they were talking about working conditions before an impending meeting with the company’s management.
In another case, an employee made negative comments about his or her supervisor on social media. Several of the employee’s coworkers then commented to the employee’s post. The employee had requested a union representative for help with responding to a complaint and was denied. The employee’s comments were found to be protected concerted activity by the NLRB.
In an example of when an employee’s online activity was found to not be protected, an employee had a dispute with her supervisor. During her lunch break, she then updated her status on Facebook with the name of her employer and an expletive. Several of her coworkers liked her status. She subsequently posted that her employer did not appreciate the workers. However, none of her coworkers responded to the second post. Her employer fired her. Her online posts were not found to be protected concerted activities because she did not ask for input from her coworkers and was not acting for her coworkers to try to improve the conditions at their workplace. The NLRB determined that she was simply stating an unprotected personal complaint.
These example cases demonstrate that employees may be protected when they are discussing their employer’s practices or policies that broadly apply. Online speech is likelier to be protected if several employees are talking online to try to prepare to talk about their issues with management. When posts are more personal, they are less likely to be protected.
Talk to the attorneys at Swartz Swidler
If you have been disciplined at your job or terminated from your position for your social media posts, you may be protected if your posts amounted to protected concerted activity. Talk to the employment lawyers at Swartz Swidler to learn about your legal rights by calling us at 856.685.7420 or by filling out our online contact form.
