In many respects, social media has become the new water cooler; employees utilize it to engage with co-workers, complain about their bosses and discuss their discontents. Many times, conference calls involve employees contemporaneously texting or group-chatting with each other, keeping up a running commentary of those things they would only say to each other and never to the boss.

With work bleeding into life more than ever (and vice versa), one issue commonly facing employers today is how to regulate off-duty social media comments made by employees that negatively impact the workplace. When employers learn of such conduct, they may be tempted to take adverse action against the offending employee(s). Depending on the nature of the comment, however, this may lead to legal liability. On the other hand, employers may be liable for not taking adverse action against employees for their social media activities, such as in the case of harassment. This article provides a high-level overview of these seemingly conflicting obligations and advice on how to navigate them.

The National Labor Relations Act

Section 7 of the National Labor Relations Act grants employees—whether unionized or not—the right to “engage in … concerted activities for … mutual aid or protection.” The National Labor Relations Board, the federal agency Congress tasked with interpreting and enforcing the NLRA, has held that employees are protected from discharge and discipline for social media activities that qualify as “concerted, protected activity”—that is, collective action taken to improve employees' working conditions. The federal courts have largely upheld the board's holdings.

Consider Three D, LLC v. NLRB, 629 F. App'x 33 (2d Cir. 2015), where employees had a discussion on Facebook about their employer's failure to properly circulate tax withholdings. During this discussion, one employee “liked” another employee's comment that belittled their supervisor's intelligence, and a third employee used an obscenity to describe the supervisor. The Second Circuit upheld the board's finding that the discussion and comments were both concerted (because they involved group activity) and protected (because they concerned wages and compensation). The Second Circuit also affirmed the board's holding that the comments were not sufficiently disparaging to place them outside of the aegis of Section 7.

However, some concerted activity, even if it concerns employees' terms and conditions of employment, is not protected by Section 7. Threats of violence, defamation, disloyalty and disparagement of an employer's product all constitute conduct that has been found to be unreasonable and thus unprotected. For example, the board held that employees advocating insubordination on social media, such as breaking legitimate work rules and “neglecting their duties,” were engaging in unprotected concerted activity. See Richmond Dist. Neighborhood Ctr., 361 N.L.R.B. No. 74 (Oct. 28, 2014).

In short, employees have the right to complain about work to each other, even in ways that managers might find mean and hurtful. As discussed below, a well-crafted employment policy can help guide supervisors when the natural inclination is discipline.

Anti-Discrimination Laws

Employee social media activity may also implicate anti-discrimination laws, such as Title VII, which prohibits discrimination on the bases of race, color, sex, religion and national origin. The Equal Employment Opportunity Commission, the federal agency tasked with enforcing Title VII, has indicated an increased effort to combat sexual harassment in the workplace. This should come as no surprise to employers in light of the #MeToo era.

But what might surprise employers is that social media comments by co-workers may constitute actionable harassment, even if such comments are made wholly outside of the workplace. For example, in Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 (1st Cir. 2019), the court denied the employer's motion for summary judgment on the plaintiff's hostile work environment claim, which was partly based on a number of degrading comments about women sent to the plaintiff from her co-workers over Facebook. That these comments were made off duty was of no concern for the court because they still adversely affected the plaintiff's working conditions. The court further found that summary judgment was inappropriate because although the plaintiff's supervisors were aware of the harassing conduct, they did nothing, thus forming the basis for employer liability.

Contrast Roy with Amira-Jabbar v. Travel Servs., Inc., 726 F. Supp. 2d 77 (D.P.R. 2010), where the plaintiff likewise alleged that she was harassed due, in part, to online comments made by a co-worker. Unlike in Roy, the court granted summary judgment in favor of the employer because, inter alia, it took remedial action to cure the allegedly harassing conduct. It therefore behooves employers to take action against employees whose social media activity negatively impacts the workplace. This includes, where appropriate, termination.

The Importance of Effective Social Media Policies

Employers should enact comprehensive social media policies that thread the needle of protecting their employees' right to voice job-related complaints while protecting them against discrimination and harassment. Employers can do this by making sure that their policies include the following:

• An anti-harassment provision stating that mistreatment on social media carries the weight of any other inappropriate workplace interaction;
• Warning employees that they will be subject to discipline if they make discriminatory or defamatory statements about the company, co-workers, management, customers or vendors;
• A clear explanation of prohibited conduct, including examples;
• Assurances that employees who make complaints or participate in an internal investigation will be protected against retaliation;
• A complaint process that provides multiple, accessible avenues in which to lodge a complaint;
• A reminder to employees to conduct themselves professionally, both on and off duty; and
• An affirmative disclaimer notifying employees of their rights under Section 7.

Finally, as with any workplace rule, social media policies should be enforced in a neutral and fair manner. Taking the above steps will not only help ensure a legally compliant work environment, but also foster a better one in which to work.

Peter Hall 

Kyle Winnick

Peter N. Hall and Kyle D. Winnick are attorneys at Chamberlain Hrdlicka in Atlanta. They represent and counsel businesses in all areas of labor and employment law.