Q: Can an employer take disciplinary action against an employee who posted negative workplace comments on Facebook?
A: The National Labor Relations Board has increased its oversight activities relating to when employers can discipline employees for their social media posts. In addition, they have turned their focus on over broad social media policies by stating that policies that limit employees “discussing terms and conditions of employment in an appropriate manner” may be viewed as an unfair labor practice. We recommend that you review your social media policy to ensure that the wording is not so sweeping that they prohibit the kinds of activity protected by federal labor law under the National Labor Relations Act, such as discussing wages or working conditions among employees.
The NLRB has issued opinions that are still in flux, but some of the opinions suggest that an employee’s comments on social media are generally not protected if they are “mere gripes not made in relation to group activity among employees.” So there is no definitive rule here, and we would encourage you to consult with your labor counsel prior to taking disciplinary action. Â If this employee was just generally complaining about work where no other employees entered into the Facebook discussion, then there may be grounds for disciplinary action; however, if other employees entered into the discussion about workplace policies and practices, then we would caution you to be careful prior to taking any disciplinary action.
The important thing to remember is that the law applies to most employees (both union and nonunion) and that it is evolving, we recommend you do seek outside counsel prior to taking action.
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