Law and Wellness

Think before you tweet

Martin Dolan

Dolan Law

December 2012

As social media continues to outpace traditional means of communication, the ways in which we share and collectinformation are evolving. The rapid, blink-and-you-might-miss-it pace of social media sites like Facebook and Twitter allow for unprecedented access to information — but the often personal nature of shared content presents unique challenges.

Who among us hasn't seen acquaintances air a public grievance about their employer or institution on a social media site? Legal concerns abound as rightfully cautious companies attempt to restrict potentially damaging social media postings while treading carefully as policies governing our Facebook, Twitter and LinkedIn accounts continue to evolve.

Think your personal social media account is for your eyes only? Think again. Anything available through a Google search is fair game for your current or potential employer to view and use to make judgments about your character. That's reason enough to exercise caution in what you post, or even what you "like" on Facebook or retweet on Twitter.

Questionable social media activity has been known to cost employees their jobs, but that may change soon based on the current legal environment. The federal agency that focuses on workplace rights recently ruled that a nonprofit could not fire employees who criticized their work conditions on Facebook.

Last year, the National Labor Relations Board (NLRB) ruled, in its first social media-related case, about whether a company can legally fire employees for posting critical or negative Facebook comments about a co-worker's job performance.

An administrative law judge with the NLRB found that five workers at a social services nonprofit — Hispanics United of Buffalo — were illegally terminated for their critiques of a colleague posted on Facebook with solicitations for feedback from other co-workers. The judge ruled that the employees should be reinstated because their actions were protected under federal labor law as their conversations revolved among co-workers discussing their employment terms and work conditions.

The judge based the ruling on Section 7 of the National Labor Relations Act, which states that as long as employees are in communication with each other to improve working conditions and wages, their actions are protected.

The reasoning is noteworthy because it differs with the First Amendment rights more commonly invoked by disgruntled workers.

While the Hispanics United case represents a growing number of workers challenging their employers' right to terminate them for tweets, Facebook posts, YouTube videos and other online content, it doesn't mean employees can post anything about their employer or job situation without fear of repercussions. Workers who make comments or post information dealing with issues outside the terms and conditions of employment may learn that free speech is not free of consequences.

Employees should know that they are not protected from divulging confidential information or defaming their boss on social media. NLRB determined that employees who make disparaging or unprofessional remarks don't have the same protections as those whose comments were confined to the workplace. An Arizona Daily Star reporter was fired recently for issuing tweets that were critical of colleagues and of the city of Tucson. NLRB ruled that the employer's action to fire him did not violate labor laws and further noted that the newspaper warned employees not to use social media to promote work-related issues.

Growing companies are struggling to develop policies that strike a balance between allowing employees full freedom of speech while enforcing professional conduct. Private employers can enact tougher restrictions, arguing that negative comments posted by employees can hurt business. More recently, employers take more extreme measures, by asking job seekers to surrender their Facebook login information, allowing them to scour any intelligence they can gather.

In August, Illinois became the second state to pass legislation that would prohibit employers from requiring current and prospective employees to provide social media login information. The new legislation, which aims to guard privacy rights and takes effect on Jan. 1, will prevent illegal employment discrimination based on ethnicity, religion, political affiliation and sexual orientation, all of which are commonly listed on a personal Facebook profile. In the Internet age of disappearing privacy, personal information is already tremendously accessible and sharing a password not only violates Facebook user policy, it also infringes upon the privacy of the user's friends.

The new law does not limit administrative power in prosecuting workplace misconduct, nor does it hinder employer access to business-related communications. But it will protect an employee's basic right to privacy, reinforce the most basic Internet rule of never sharing a password and, most importantly, prevent at least one kind of workplace discrimination.

For employers, these changes mean creating policies that balance free speech and discussion with adherence to professional conduct. For employees, it means thinking twice before hitting the send button.