A: If he’s a supervisor or manager, absolutely. But if he’s a nonsupervisory employee, then his activity may be protected. Under the National Labor Relations Act (NLRA), most nonsupervisory employees have the right to band together for mutual aid and protection to address concerns about wages, hours, and working conditions. If the employee is voicing concerns on behalf of one or more coworkers about a workplace issue, then the complaints and Facebook page are probably protected concerted activity. A possible exception would be statements that are intentionally false or malicious, although that can be difficult to prove. Review our Model Policy, “Social Networking Policy” (6310).
You should ask your Vigilant staff representative to review your non-disparagement policy, as well as the rest of your employee handbook, for possible NLRA issues. Here are some examples of common policies that could get you in trouble if you discipline or fire an employee for violating them:
- All information about our business, our employees, and our clients is confidential.” (The NLRA allows workers to compare notes regarding their wages, disciplinary actions, etc.)
- All inquiries from government agencies or the media must be directed to the legal department.” (The NLRA allows employees to talk to reporters and government agencies about their wages, hours, and working conditions. Other laws such as Title VII or whistleblower laws also protect employees’ ability to complain to government agencies.)
- Taking photos of the workplace is prohibited.” (Employees may have a protected right to document a concern about safety or unfair treatment.)
- No slogans shall be worn on clothing.” (The NLRA may allow employees to wear clothing that encourages unionization or otherwise calls coworkers to action about a workplace issue.)
Most of these policies are in place for valid business reasons. Your Vigilant staff representative can help you adjust the policies to accomplish your business needs while avoiding NLRA complications. There may even be circumstances where you decide to leave a policy “as is” but educate your managers to ensure they don’t take disciplinary action on the basis of protected concerted activity. That way, you greatly reduce the likelihood of your policies ever being scrutinized by the National Labor Relations Board or another government agency.
Q: One of our employees complains all the time. Today we learned he started a Facebook page that says our company sucks. We have a policy prohibiting disparagement of our organization. Can we tell him if he doesn’t like it here, he can leave?
