A right to rant? Protections at issue when employees complain online

At one time or another, most of us have complained about workloads, wages, bosses, hours or some other aspect of a current or former job. These discussions are usually verbal, but the increasing use of social media has resulted in many of these conversations appearing online.

However, unlike verbal conversations, a social media discussion about work creates a written record, and it might be read by someone the author did not intend to include.

For example, when conducting background checks on applicants, employers may perform an internet search. If they find the applicant posted criticism about a previous or current employer (perhaps using language that wouldn’t be appropriate in polite society), they might consider those comments in a hiring decision.

In some cases, employers discover social media postings made by current employees that criticize the organization, its managers or other employees.

While federal laws such as the Stored Communications Act prohibit third-party access to information stored with an internet service provider (ISP) unless that party has permission, the consent does not need to be given by the author. Anyone granted access to the information (including any “friends” of the author) can give access to another person. For example, the posted comments could be shared online, or could be printed and given to a supervisor.

That’s something to keep in mind before hitting the Enter key to post a sarcastic comment about the workplace.

Employees sometimes forget they are “friends” with a supervisor, or might not realize a co-worker is friends with a supervisor, and the criticism finds its way to an unintended audience.

While criticism can result in discipline or even termination, other comments may be protected, and employers may even be prohibited from imposing discipline.

Specifically, the National Labor Relations Act allows employees to engage in “concerted activities for mutual aid or protection.” The intent is to allow employees to form a union if they desire and to negotiate matters such as wages, hours and working conditions.

However, employee discussions about wages, hours and working conditions may be “concerted activity” even if no union is formed. If the employees express a desire to take action or make changes in the workplace (for mutual aid or protection), the conversation may be protected.

The National Labor Relations Board, which enforces the NLRA, has ruled that discussions on social media sites about such matters deserve the same protection as verbal conversations.

Of course, not every complaint is protected. The discussion must involve other employees, not merely acquaintances or family members. Also, the activity must go beyond mere complaints about the job.

For instance, complaining to co-workers about the sloppy work habits of another employee probably isn’t protected. Also, lamenting the lack of a pay raise to family members would not be protected. However, a discussion among co-workers about the unfair enforcement of a dress code, with an expressed desire to change that situation, is likely to be protected.

The NLRB has even found that using offensive language does not automatically remove the protected status of these discussions. The board has stated that employee comments may criticize the employer without becoming so defamatory as to lose protection under the NLRA. The standard for losing protection is relatively high, such as making malicious statements that are known to be false.

Employees should be aware that postings on social media sites may not be as private as they think, and keep in mind that any of their “friends” or connections could share that post with someone at work. If the subject is not protected, such as complaints about the quality of the company’s products or services, the employer could take disciplinary action.

Employers should keep in mind that a discussion among two or more co-workers may be protected if the co-workers are acting in concert to change their working conditions. The solution may be to address the concern, even if only to explain why the situation exists. Imposing discipline on employees for talking about perceived unfair treatment, wages or other working conditions may not just be inappropriate — it may even be unlawful.

Ed Zalewski is an editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Zalewski specializes in employment law. For information, go to www.prospera.com.

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