Photo by patrisyu. Published on 23 January 2014

Can employers use social media content to not hire, fire or take someone to court?

Under the National Labor Relations Act of 1935, American workers are protected in their expression about working conditions.

With an explosion of social media use though, understanding whether employees can be threatened or terminated for things they do or say online has proven difficult.

Employers and employees have clashed in court over the consequences of social media activity several times since its inception.

A report from the National Labor Relations Board detailed the outcomes of 14 social media cases from 2009 to 2011.

In four cases, employees were found to be engaged in “protected concerted activity” because their Facebook posts discussed employment terms and conditions with fellow employees.

Five other cases that centered around Facebook and Twitter posts were ruled in favor of the employers as the posts were not deemed to be protected.

One case declared a union to have engaged in unlawful activity by posting edited footage to YouTube of workers at a non-union worksite being interviewed about their immigration status.

Another case involving a company’s policy that restricts employees’ contact with the media ruled in favor of the employer.

And segments of employers’ social media policies were judged to be unlawfully overly-broad in five cases “as employees could reasonably construe them to prohibit protected conduct,” according to the report.

The National Labor Relations Board clarifies the protections of social media use on their website: “Even if you are not represented by a union, federal law gives you the right to band together with co workers to improve your lives at work — including joining together in cyberspace.

“Using social media can be a form of ‘protected concerted’ activity. You have the right to address work-related issues and share information about pay, benefits and working conditions with co-workers on Facebook, YouTube and other social media. But just individually griping about some aspect of work is not “concerted activity”: what you say must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.”

The United States Small Business Association recommends that employers protect themselves by creating employee handbooks. Employee handbooks might contain a “Courtesy Rule” or code of conduct that may outline certain behaviors that employees cannot engage in even in their personal time. It is an employee’s responsibility to know if such policies exist. And such policies cannot infringe upon protected conduct.

Employees can be asked to sign non-disclosure agreements and conflict-of-interest statements to guard proprietary information and trade secrets. This is done with the understanding that refusing to adhere to lawful policies can result in termination, according to the National Labor Relations Board.

So, employees can be held accountable for their social media activity if the activity in some way violates company policies.

However, policies cannot restrict workers’ expressions of working conditions or concerted activity on social media.

Oklahoma attorney and former Assistant District Attorney Jay Trenary said there’s nothing illegal about employers looking at publicly posted materials, via social media or otherwise, when making hiring decisions.

“Checking Facebook pages is becoming standard practice,” Trenary said. “I don’t know much about employers personally but I know they do, especially on prospective employees.”

Tim O’Connor, President of the Central Oklahoma Labor Federation, agrees.

“Like any possible job opportunity, employers may do all kinds of background checks on potential employees. Social media makes it more difficult for workers if they don’t edit their own activity.

“My rule of thumb is, don’t put anything out there you don’t want the world to know,” he said.

“I don’t put anything on my FB that I wouldn’t want the company to see.”

To contact Jorge Krzyzaniak, email seniorwriter@occc.edu