Negative Social Media Post: Protected or Unprotected Behavior?

When an employee bashes your company in a negative social media post, can they legally be disciplined? Or is that their freedom of speech?



You just discovered a disgruntled employee went on social media and wrote a disparaging post about you, their supervisor, and the company. Not only are you furious and embarrassed, you’re ready to discipline, if not fire, the employee.

But is it within an employee’s freedom of speech rights to post whatever they want on social media?

When is an employee’s social media post protected?

Section 7 of the National Labor Relations Act (NLRA) provides protection for employees when their social media post meets both of the following conditions:

  1. The post is concerted. This means two or more employees are involved. Examples may include other coworkers viewing or commenting on the post, the employee is making a statement on behalf of other employees, or the post is stemming from a previous work incident where others were involved.
  2. The post must be about working terms and/or conditions. When the topic is about employee wages, benefits, work hours, unsafe conditions, problems in the workplace, group complaints, or any other work condition, employees are able to comment, discuss, question, complain, or criticize to their heart’s content.

It’s important to highlight that while unions are typically associated with protections under the NLRA, both unionized and non-unionized employees are covered in situations where speech is concerted and about work conditions.

What if an employee posts on social media outside of work hours?

If an employee’s social media post meets both of the above conditions, it doesn’t matter when they made the post. Whether during or outside of normal work hours, employees who create or comment on posts that are both concerted and about working terms are protected from disciplinary action.

When is an employee’s social media post NOT protected?

According to the NLRA, employees lose protection when they say or do “something egregiously offensive or knowingly and maliciously false, or by publicly disparaging [their] employer’s products or services without relating [their] complaints to any labor controversy.” In other words, if an employee is hopping online to blow steam for their own interests or personal complaints, that doesn’t warrant protection – even if other coworkers chime in on the venting. They’re only protected when the communication is both concerted and about work conditions.

How can I protect my company from social media bashing?

To avoid violating NLRA protections, employers should adopt social media policies that are specifically tailored to:

  • Prevent discriminatory remarks, harassment, bullying, threats of violence and other behavior that is unacceptable at the workplace;
  • Request that employees identify that their comments are their personal opinions and do not represent their employers’ official positions on any specific issues; and
  • Bar employees from disclosing trade secrets, publishing internal reports, providing tips based on inside information or participating in other activities that may be considered inside trading.

For help with customizing your social media policy, start here or contact your HR Consultant.

Bottom line: If the purpose behind a social media post is just to disparate or create problems, then it’s likely not protected. But before you make a knee-jerk reaction to discipline, be sure to scrutinize the content and intent of the post. Better yet, contact your HR Consultant to help.

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