There is a lot of confusion out there in the workplace about what employees can and cannot say when they are off-duty. There is particular controversy and confusion over what employees can say online using platforms like Facebook and Twitter to discuss things going on at work.
The major case on this issue was brought before the National Labor Relations Board by a small group of employees who were fired after discussing a coworker’s criticisms of them and their demanding workload on Facebook. The NLRB found that the speech was protected under relevant labor laws.
The NLRB has been careful not to extend protection to comments that are basic complaints or that are truly inappropriate. The decisions that have extended protections to social media speech about work have been specific that they are protecting only concerted speech, which they define as speech relating to wages, benefits, or working conditions. The New Deal-era law that the decisions are based off of were designed to extend protection to picketers and other type of organized labor and labor activism.
Some companies say that the extension of those protections is improper, since it applies to workers who are non-unionized. One of the members of the NLRB panel agreed that the protection being offered was too broad, writing in that employee venting was not protected speech.
Advocates of expanding protections for employees using social media counter that employees should not be penalized for legal, non-work related comments that they make. NLRB guidelines now instruct companies to revise social media policies to be more specific and ban only certain types of speech, like workplace harassment. Current corporate policies have been found to be overboard in some cases.
Source: The New York Times, “Even if It Enrages Your Boss, Social Net Speech Is Protected” Steven Greenhouse, January 21, 2013.