Workers’ constitutionally protected right to free speech is generally checked at the doors of private enterprises. However, when it comes to social media discussions about inflexible schedules, ice cold break rooms or obscenity-laden rants about mandatory overtime, employees have the right to post, share and like to their hearts’ content.
“According to the National Labor Relations Act, what constitutes as protected speech is anything that explicitly discusses terms and conditions of employment — whether it relates to how you’re treated at work, wages, breaks, anything that goes to the terms and conditions of your employment is considered protected,” said Katie Loehrke, editor at Neenah, Wisconsin-based compliance resource firm J.J. Keller and Associates.
The social media age has given the federal act its fair share of tests, many of which have leaned in favor of private sector workers expressing views that could be vital in deciding whether to unionize, Loehrke said.
For government and other public sector workers, the standard is looser but still gives employees enough rope to hang themselves.
Loehrke referenced a case in which an employee was fired after liking an ad supporting his employer’s opponent in a sheriff election.
The 4th U.S. Circuit Court of Appeals ruled the employee’s “like” was protected speech, but only after a district judge had ruled the speech was not protected and the firing was within legal bounds.
With boundaries between legally protected speech and legitimately firable offenses fuzzy at best, business attorney John Snyder of Manhattan advises employees to err on the side of caution.
Even if a social media comment doesn’t make national headlines, it can still find its way to employers increasingly interested in protecting their brands.
Robert Faletti, founder of Pittsburgh-area social media marketing firm Blue Archer, said his organization went from straightforward social media management to a blend of “reputation management” activities, which includes monitoring employees’ Facebook and Twitter posts for potentially scandalous comments.
Faletti called the practice a “growing” segment of business and said some clients tell employees their activities are being monitored, while others let his team follow employee activities undercover.
Faletti said his company is looking for inflammatory comments that shine a negative spotlight on the company being represented.
“We have to be mindful of the individual’s right to express themselves so it’s not an overbearing process. We check for things that employers can look at and say this is something that might damage my reputation. We look for any sign that employees are bringing their employer into the conversation,” he said.
Rights to self-expression aside, Snyder said he tells clients to think of the right to work first and foremost before sending comments into cyberspace.
“My first bit of super-conservative advice is don’t put anything personal on Facebook. My second bit of advice is don’t put anything on Facebook that you don’t want to end up in the (newspapers),” he said.