Although technology is playing an ever-greater role in the workplace, few labor laws address employee use of social media. However, two federal agencies—the U.S. Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB)—have recently provided clarity on the protections afforded employees and their online content.
Both agencies have determined that certain labor law protections should extend to employee profile information as well as certain work-related conversations among employees on social media.
The EEOC: Protection From Discrimination
Equal employment opportunity (EEO) laws prohibit employers from making employment-related decisions (e.g., hiring, firing, promotion, and discipline) based on a protected category, such as race, sex, national origin, age, religion, disability, or military status. The EEOC has now extended this protection to online profiles and social media.
Employers cannot discriminate against prospective or current employees based on their social media content. For example, employers cannot search for employees or candidates on Facebook to see their pictures and attempt to determine their age.
That being said, EEO laws do not prohibit employers from using content from social media sites to conduct background checks. Employers can also make HR-related decisions based on social media content that employees post publicly online—but this is subject to one important limitation based on another labor law, the National Labor Relations Act (NLRA).
Concerted Activity Is Protected From Employer Retaliation
Generally, an employer may fire or discipline an employee for content posted on a personal social media site if the material is offensive or disparaging to the employer or its current or potential clients. However, the NLRB has recently begun to apply certain labor law protections from the NLRA to online employee posts.
Federal labor laws protect employees who act together to address or resolve workplace conditions and issues. This form of constructive behavior is referred to as “concerted activity” and is protected from employer retaliation. The NLRB has determined that certain online employee posts and comments may qualify as protected concerted activity.
Through its investigations of multiple cases involving work-related conversations on social media, the NLRB has created two general guidelines for employers dealing with online content and protected concerted activity:
- Employers cannot prohibit employee activity over social media if it is concerted, such as discussions (among at least two employees) pertaining to wages, working conditions, or safety concerns.
- Disparaging comments or mere “personal gripes” about an employer on social media are not protected.
Compliance Steps for Employers to Take
How and when you view, monitor, obtain or use information regarding potential and current employees are crucial. Human Resource and compliance professionals need to be aware of regulatory changes to labor laws as well as generally accepted industry practices and standards. To keep up with the most recent changes to labor and employment laws, including the latest federal labor law poster requirements, visit the Poster Compliance Center website.