A Guide to Navigating Social Media in the Workplace

Based on the 2012 National Labor Relations Board

Social Media Report

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DISCLAIMER!The content in this

slideshow is not meant to

encourage employees to

push the boundaries of

their employers’ rules.

These guidelines will not

necessarily save you

from getting fired. But

they may aid you in a

possible wrongful

termination suit.

- Tyler McCarthy

Criticism amplified beyond the office

Under what circumstances could

an employee be fired for Facebook

comments that reference his or her

employer? When might an

employer's rules about Twitter

postings be unlawful and impede

upon free speech?

As social media use grows more

common in the modern business

world, it is important for those

engaged in private and public

discourse online to understand

their rights.

Navigating the NLRB Report

In January 2012, the National

Labor Relations Board (NLRB)

issued its second social media

report, outlining recent conflicts

arising from employee use of sites

like Facebook and Twitter. The

report provides guidance to both

employers and employees.

The NLRB works to ensure that

workers have rights to combat

heavy-handed company policies. It

is an employee’s responsibility to

know what these rights are and

how to apply them.

Understanding Your RightsThe main element courts will look for in a wrongful

termination suit involving social media posts is the context

of the employee’s offending statements. Online posts

could fall under what the National Labor Relations Act

has established as an employee’s “Section 7 rights.”

Understanding Section 7 Rights

• An employee’s Section 7 rights extend to any

conversation about the workplace that can reasonably

be considered as sparking a discussion about conditions

in the workplace.

• Discussion about one’s work environment and conditions

counts as a “protected” employee activity, according to

the National Labor Relations Act .

• In recent years, the NLRB has determined that Section 7

protections are extending to the realm of social media.

How Section 7 Applies To You

You are allowed to

complain about the your

workplace online as long as

you can argue that what

you were saying had to do

with your “work conditions.”

You may also need to prove

that you had an “intended

audience” in mind when

you publish comments on

Facebook or Twitter. Being

friends with other

employees goes a long

way.

Choosing your words, wisely?

The language that you

choose to use on social

media does not really

matter, as long as you stay

within the parameters of

your Section 7 rights,

although inappropriate and

offensive language is never

a good idea for your

professional reputation.

photo credit: Spencer E Holtaway, Flickr cc

Understanding Your RightsAs social media goes mainstream, U.S. companies are trying to stay ahead

of the game by drafting social media policies. By making standards known to

employees, the assumption is employers have a right to enforce the

company’s social media policies if a violation occurs. However, the NLRB

says “Section 8 (a)(1) rights” may come into play.

Understanding Section 8 (a)(1)Rights

Under “Section 8 (a)(1),” an employee could argue

that a social media policy drafted by a company was

unlawful under the National Labor Relations Act.

Employers are prohibited from instituting rules that

quash discussion about working conditions.

If it can be reasonably believed that an employer’s

social media policy could, in any way, restrict an

employee’s established Section 7 rights, then the policy

is unlawful and an employee cannot be held to

disciplinary action for violating it.

photo credit: Joe Gratz, via Flickr cc

How Section 8 (a)(1) Applies To You

Section 8 (a)(1) exists so

that employees do not have

to fear the social media

policy boogeyman created

by their firm.

As long as an employee

understands and works

within their NLRA Section 7

rights, they will know which

parts of their employer’s

social media policy holds up

legally and which ones do

not.