March 1, 2011

Sticks and Stones: When Words Can Hurt You


Spring 2011

Innumerable bits of communication flow each day across the Internet and other social media. From content that titillates to content that informs, from sellers hawking their wares to buyers seeking a steal, one can find and say just about anything. But what does an employer do when an employee uses the Internet or some other form of social media to disparage the employer or other coworkers? What the employer must resist is a knee-jerk reaction to use such communications as the basis for disciplining the employee, including termination of the employee.

The National Labor Relations Act ("NLRA") was passed and signed into law in the first half of the 20th century and protects the rights of employees to participate in "concerted activity." Section 7 of the NLRA prohibits interference with an employee's right to engage coworkers in discussing the terms and conditions of employment. This concerted activity is the lynchpin of the right to collective bargaining. Section 7 specifically provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). If you are an employer and have read this far you are now asking yourself how the NLRA affects your company, since you have a nonunion workplace. Consider the recent experience of a Connecticut ambulance company that thought the NLRA didn't impact its right to discipline an employee for making disparaging statements about her supervisor on her Facebook page.* That company, and now all employers, discovered that the NLRA is implicated whether the company is unionized or not. Employers now know that the law still has teeth in the 21st century. View a copy of the formal complaint.

Employers walk a fine line when managing the conduct and behavior of the workforce. Other issues that impact a company regarding social media include potential liability for defamation, invasion of privacy, and copyright and trademark infringement. These are all instances where words can hurt the employer.

Social media and networking are here to stay and will continue to evolve. For this reason, employers need to be flexible and understand the legal limits when creating social media policies. Employers may violate the NLRA even if the policy does not expressly restrict protected activities if:

  • Employees would reasonably construe the policy's language as prohibiting Section 7 activity;
  • The policy was created in light of union activity; or
  • The policy is applied to restrict employee Section 7 rights.

The recent NLRB case should not discourage employers. Employers still have legitimate reasons to implement social media policies. These include:

  • To protect the confidentiality of company trade secrets or proprietary information;
  • To protect the confidentiality of clients, partners, financial information, and suppliers;
  • To protect information regarding new product development, launch dates, and similar information;
  • To protect against references to illegal activity or drugs in the workplace;
  • To protect against obscenity and child pornography;
  • To protect against disparagement of persons based on race, religion, gender, sexual orientation, disability, national origin, or any other protected class status.

What should an employer do about a social media policy? Here are some helpful tips:

  • If you have a social media policy, review it to ensure that it does not chill an employee's rights, and make modifications if necessary;
  • If you don't have a social media policy, consider creating one to provide appropriate protection to the company, its reputation, and confidential and proprietary property;
  • Implement the policy only after employment legal counsel has reviewed the policy;
  • Avoid policy language that would reasonably tend to chill employees in the exercise of their Section 7 rights;
  • Be sure that the main purpose of the policy is to achieve compliance that protects the company without infringing an employee's rights; and
  • Consult with your insurance carrier to ensure that your general liability insurance will cover your company against allegations arising from the use of social media by the company.

With a little planning and careful drafting, an employer can protect its confidential and proprietary property while not infringing on employee rights. Employers and employees can then peacefully coexist in the rapidly evolving social media world. While sticks and stones may break your bones, the words will never hurt you if you are careful in your enforcement of a social media policy.

*American Medical Response of Connecticut, Inc. and International Brotherhood of Teamsters Local 443, NLRB Case No. 34-CA-12576

For more information on this topic, please contact or call (888) 598-7070.

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