Social media has been integrated into all aspects of American society, including within the workplace. Employers must be mindful of social media policies and practices as applied to employment issues protected under the National Labor Regulations Board (NLRB) as well as any other regulatory government agencies.
Under the National Labor Relations Act, all workers have the right to participate in concerted “activities” for the “mutual aid and protection” of their co-workers. According to the NLRB, any policy that prohibits employees from engaging in “concerted activities” is invalid. The law provides employees the right to collaborate amongst themselves “to improve their pay and working conditions.” For example, an employer cannot fire an employee for discussing hazardous work conditions with their co-workers over Twitter or criticizing a management policy or unfair pay to a fellow employee over Facebook.
Employers do have the right to take adverse action against employees that share their “mere gripes” that are not made in connection with group activity among coworkers. Threats or complaints against customers, harassment against another employee, confidential information about the company or clients that may damage the business’ reputation or information regarding an employee engaging in deceptive behavior or violating company rules may be instances for disciplinary actions against the employee. However, certain state legislations regulate how much employers can monitor off-duty conduct and may prohibit termination under these circumstances.
Additionally, employers who “befriend” their employees on social media may leave themselves vulnerable to discrimination and harassment claims in the future. Some social media platforms provide information regarding an employee’s medical history, religion, sexual orientation, socio-economic status or other information that would not be accessible otherwise. Although the knowledge of this information may not be of immediate concern, if the worker was to be fired he or she may claim it was because of the information presented on social media. An employer’s sexual or inappropriate comments on his or her employee’s posts or pictures may be construed as sexual harassment.
When it comes to the workplace, employers should consult an experienced New York employment law attorney to review and adapt current social media policies to stay in compliance with local and national regulations. The lawyers at Blodnick, Fazio & Associates PC are experienced in handling complex matters for business owners such as workplace safety, employment discrimination, wrongful termination, right to privacy issues, whistleblower rights, wage litigation, and more. For more information, contact the firm at (516) 280-7105.