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Nov 14, 2016

Q&A: Are employees’ social media posts on wages and safety protected?

Q&ALabor RelationsSafety and HealthWage and Hour 

Question: All our employees make more than minimum wage, but we had an employee go on social media and say, “Minimum wage for this work?! How are we supposed to live off that?!” A number of other employees commented on the post and a few complained about a recent safety incident. Can we discipline the employee who lied about his pay? What can we do to address this?  

Answer: No, you shouldn’t discipline the employee who made the minimum wage comment, but you should definitely take steps to address all of the comments. The National Labor Relations Act (NLRA) protects non-management employees’ right to discuss or complain about their wages, hours, and working conditions. This protection has been consistently interpreted to also protect false and misleading comments about wages, hours, and working conditions. A recent case involving social media posts where Chipotle employees complained about their wages and said that the company used cheap labor affirmed the unfortunate reality that employers must be able to show that the employees had a malicious motive in posting the material before discipline is handed down (Chipotle Services LLC dba Chipotle Mexican Grill, NLRB, Aug. 2016).
 
The employee’s post in this instance hardly rises to the level of maliciousness, and the employee probably had a genuine belief that some employees working for you make minimum wage. When it comes to the comments about the safety incident, the same standard applies, so those comments would most likely also be protected. However, you can and should take steps to address the comments. A few tips on how to address these comments and concerns:

  • Review the comments. What’s the underlying issue? In this situation, at least one employee clearly doesn’t believe that your pay scale is appropriate, and it’s obvious that the recent safety incident is still an issue.
  • Address the concerns in person, while respecting employees’ rights and privacy. Take some time to address these concerns with the individual employees who made the comments or in a larger group meeting (without singling the employees out). Be prepared to discuss why your pay reflects the broader market, how employees can advance to higher pay grades, and what you’ve done to ensure that the safety incident doesn’t happen again. The bottom line here is that you shouldn’t take the easy way out and simply discipline these employees; the best approach is to engage with them and explain your positions.

If you have questions about how to address employees’ concerns about wages and workplace safety, consult with your Vigilant employment law attorney for guidance. Ensure that you understand the National Labor Relations Act’s (NLRA) stance on protected communication, especially as it relates to social media use and protected speech. Our legal guide, Social Media Model Policy for Employers, can be customized to your organization. If workplace safety is an issue, take every step to improve workplace safety and prevent injuries. Our safety professionals can help you determine which steps to take in order to prevent future incidents, creating a culture of safety and respect at your organization.

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