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Q: We’ve become aware of a social media post by one of our employees in which he complained about his working hours and pay. The post was “liked” by several of his coworkers, one of whom commented “Preach!” and another of whom posted an angry face emoji. Can we discipline employees for social media complaints about the company?
A: We recommend against disciplining the employees for these activities on social media as their speech is almost certainly protected under Section 7 of the National Labor Relations Act. Section 7 protects certain “concerted activity” by employees, which is activity done in concert, meaning more than one employee is involved. This kind of activity is protected if it’s related to their terms and conditions of employment (e.g., pay and scheduled hours).
In this case, because the employee complained about their pay and hours in a virtual space and other employees joined in – expressing their agreement through “likes,” emojis, and comments – the actions are clearly concerted activity and therefore protected.
However, this sort of social media activity by employees can be frustrating. One way to reduce the likelihood that employees will air their grievances on social media is to establish a means for them to do so internally. Employee surveys, comment boxes (whether physical or online), stay interviews, and true “Open Door” policies are all ways to solicit this feedback. The key is to be willing to listen and act on the information you gather. If employees think taking their complaints directly to a manager will end in retaliation, or simply won’t lead to any change, they’re more likely to keep complaining on the Internet.
Another way to address this is by creating a social media policy for your company. Here are a few do’s and don’ts to keep in mind when creating one:
Social Media Policy DOs
- Maintain control over company social media accounts.
- Respect the privacy of employees.
- Encourage employees to be respectful and to avoid statements that could be interpreted as threatening, harassing, or defaming.
Social Media Policy DON’Ts
- Examine the social media accounts of applicants or employees.
- Restrict concerted activity.
- Ignore the laws on things like disclosing login credentials, accessing personal social media in your presence or add you to their contacts or friends list, and retaliation on your part.
Currently, there are 26 states with social media privacy laws protecting employees’ and applicants’ private accounts from being accessed by employers. Even if you don’t do business in one of these states, it’s not recommended you try to access employees’ private social media accounts.
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