They can’t say that on Facebook! Actually, they probably can.
On occasion, we will share stories about employer/employee relationships we see in the news. Chances are, your employees see them, too.
In recent weeks, there have been news reports about employees being terminated for criticizing their employers on social media platforms such as Facebook. The stories have highlighted healthcare workers who have stated they do not have access to necessary personal protective equipment. In multiple cases, healthcare facilities have suspended and terminated employees for such posts. Reasons provided for such drastic discipline have included violations of privacy regulations or company policies about making statements that disparage the reputation of the business.
If an employer has created a handbook or communications policy, there will generally be a section that admonishes employees from doing or saying anything that could damage the business. Often, there is a clause that prohibits employees from speaking publicly about the business without authorization. This allows the employer to take action against an employee who uses poor judgment that harms the organization’s reputation. However, it is important to realize the fine line that exists between employee behavior that creates a negative image and posts on social media that could be considered “concerted activity.”
It can be easy to have a visceral reaction to seeing an employee’s negative social media post about their work experience. Before taking disciplinary action, an employer must realize there are multiple federal laws that protect employees from retaliation. The National Labor Relations Board prohibits an employer from terminating an employee who engages in “protected concerted activity.” If an employee drafts a post to colleagues complaining about workplace conditions that sparks an online conversation, such as frustration at not having masks provided by the employer, this would likely be considered protected behavior. Additionally, if an employee calls out employer behavior that is in violation of the law or local mandates - such as being required to not wear masks when health authorities have stipulated their use - he/she could be protected as a whistleblower. Certain states also have more restrictive laws that protect employees from being terminated based on their personal social media posts.
Regardless of the legal ramifications, it is important for employers to consider the negative publicity that can come from terminating an employee as perceived retaliation for making critical statements about their workplace. This is especially important in an era when more than 36 million people are unemployed and safety is the #1 priority for those who cannot work from home. The bottom line? Sleep on it, then have a transparent conversation with any employee who is expressing dissatisfaction with the work environment. Where there is smoke, there is usually a flame. It is highly likely the person who speaks up represents others who might also have something to say.
Please note, blog posts are meant to provoke thought and further consideration. Nothing written should be considered legal advice.
