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Tips on Social Media's Legal Minefields

Employers should tread carefully when firing employees for misuse of social media.

December 14, 2012

During the first presidential debate this year, a KitchenAid employee posted this offensive tweet about the president: "@KitchenAidUSA: Obama's gma even knew it was going 2 b bad! 'She died 3 days b4 he became president!' #nbcpolitics."

Within three hours of posting, the employee was fired, and rightfully so, says Michael Schmidt, a member at Cozen O'Connor, a law firm in New York. The employee acted recklessly in a way that maligned the brand.

But other cases aren't so clear cut.

"Many companies mistakenly believe that all company information is protected," Schmidt says. However the National Labor Relations Act says otherwise.

The NLRA protects the rights of employees in the private sector to engage in certain concerted activities, and that includes discussing terms and conditions of the workplace. That means you can't fire employees for complaining about their boss or their wages, even if they do it online.

This argument was proven in 2011, when a BMW dealership in Illinois fired a salesman for complaining on Facebook about the food served at a dealership event. The National Labor Review Board sued the dealership on the employee's behalf and won, because while the posting might not have been flattering to the dealership, it was protected by the NLRA.

Before taking dramatic steps against an employee for misuse of social media, Schmidt urges companies to ask themselves these three questions.

  1. Was the comment a concerted act? If the employee is venting to their social network about their job and no other employee participates in the conversation, it is protected by the NLRA. However, if even one other employee joins in, the comment is considered a concerted act and thus not automatically protected.
  2. If the comment was concerted, is it still protected? If the employee is discussing terms and conditions at work, including wages, cafeteria food or treatment by their boss, it's protected, even if other employees participate.
  3. Did the employee act in a reckless or disloyal way? If an employee's postings are so slanderous or offensive that they put the brand or its products at risk, the employee can lose that NLRA protection even if it relates to workplace conditions.

"The NLRB isn't saying employers have no rights to protect their brand," Schmidt says. "But you don't want to be trigger happy just because an employee says something you don't like."

Sarah Fister Gale is a freelance writer based in the Chicago area. Comment below or email editors@workforce.com.