New York
CNN
—
Workers thinking about criticizing their employer on social media might want to think twice.
While there are some protections in place that allow employees to speak about their employers, the situation is tricky – as evidenced by the recent firing of a Tesla manager who posted critical comments about CEO Elon Musk on LinkedIn, according to The New York Times. Some of those safeguards may only apply to certain situations, and employers generally have a lot of leeway to terminate employees for reasons they deem fit.
“In general, an employer could fire an employee for just about anything, including criticizing the company on social media or anywhere else,” said Jeffrey Hirsch, a professor of labor and employment law at the University of North Carolina.
Tesla did not respond to a request for comment.
Still, there are laws in place to protect workers, although it’s a wise idea to get familiar with the terms of your employment and your company’s social media policies.
Whether you’ll get in trouble for what you post on social media depends on many factors, including whether you’re employed under an “at-will” contract. This type of agreement allows either a worker or their employer to terminate their employment for any reason. But there are exceptions to the principle, such as anti-discrimination laws or a contract that stipulates the terms for which a worker’s employment may end.
Employment-at-will is the default model of work for all states in the US except Montana, where employers can only fire an employee for cause, according to the National Conference of State Legislatures.
Employees are also protected under the National Labor Relations Act (NLRA), which states that workers are allowed to engage in a “concerted activity,” such as engaging with co-workers about employment conditions.
“If the employee can argue that they were either communicating with coworkers or speaking on behalf of coworkers or trying to encourage coworkers, the speech is very likely protected (under the law),” said Catherine Fisk, a professor of employment law at the University of California, Berkley.
The bar for an employee to make this type of claim is low, according to Hirsch, who said even an interaction as simple as “liking” another employee’s Facebook post could be protected.
But the discussion also needs to be specific to workplace policies that affect multiple employees, said Mark Kluger, an attorney at the firm Kluger Healey who advises companies on their labor policies.
“If it’s something more general, like ‘my employer stinks’ or ‘my boss is a jerk’…those are not protected activities,” Kluger said.
Public sector employees, including federal, state and local government workers, are also protected by the First Amendment if their speech was made off-duty and if the speech addresses a “matter of public concern and is not unduly disruptive,” according to Fisk.
“There are a lot of cases, for example, of teachers or police officers who get disciplined for social media posts and successfully bring First Amendment claims,” Fisk said.
While a company can prohibit its employees from posting false statements about the business, it cannot outright prohibit the employee from making critical posts, said Kluger, who helps companies draft social media policies.
“The National Labor Relations Board previously has looked at those types of provisions and said (they’re) too broad,” Kluger said. “Because it would be perceived as inhibiting an employee from complaining about terms of employment.”
Employers do, however, have more latitude to prevent employees from disparaging a company’s products or services, as opposed to their employment practices.
When advising a company on its social media rules, Kluger said he recommends that clients outline how an employee’s personal social media posts can harm a company’s reputation while encouraging workers think carefully about the impact of their words.
He added that policies often direct employees to avoid disparaging competitors or revealing trade secrets, along with disclosing that their posts do not represent the views of the company they work for.
If an employee believes their employer retaliated against them for what is a protected activity, they can file a complaint with the National Labor Relations Board.
“The bad news is most people don’t know about it,” Hirsch said. “And most lawyers don’t even realize that a non-unionized employee could have this protection.”
A regional office of the NLRB will then investigate the report and reach out to the employer to determine if the case has merit. If the employer does not settle the dispute, the NLRB will take up the case at no cost to the employee, Hirsch explained. While the process can be time-consuming, the employee is entitled to return to their job and receive backpay if a judge rules in favor of the employee.
Soon after President Trump took office, he fired the chairwoman of the NLRB, Gwynne Wilcox, leaving the board with just two members and causing it to lose its quorum. The board is traditionally made up of three members appointed by the party that controls the White House and two appointed by the opposing party. Last week, a federal judge ruled that Wilcox’s firing was unlawful and allowed her to return to work, though no longer serving as chairwoman.
Though the board will likely have a Republican-appointed majority soon, Hirsch said the change isn’t likely to impact most cases related to wrongful retaliation for an employee’s posts on social media, as these cases often have clear evidence. However, the board’s views could influence a case with murkier facts, according to Hirsch.
“It depends on how close to the margin a case might be,” Hirsch said.
Kluger said he receives more inquiries from businesses concerned about their employees’ posts during times of increased political or social debate, such as during election seasons or protests.
“When things are a little calmer — although I can’t remember any of those times recently – then things calm down a little bit,” Kluger added. “But there always seems to be something that people are commenting on that may impact their employers’ feelings about whether they want to be associated with those views.”
