Approximately ten years ago Facebook was launched in a dorm room of Harvard University. Fast forward to today and it is a publicly traded company with over one billion users. Other social media websites are also widely visited, such as Twitter, Pinterest, Tumblr, and a wide array of blogs, chat rooms, and forums.
Imagine the following scenario: one of your employees posts the following comment on a social media site: “I work at XYZ Restaurant. The owner of this place is such an A-hole. He hasn’t given the employees a raise in years, and now he’s dropping our hours to avoid ObamaCare regulations. We should tell him to shove it!” Next, imagine that several other employees click the “like” button or comment on the post. Your first reaction may be to immediately terminate the employee who posted the comment, and perhaps the others who commented on it too. But this type of behavior is likely protected activity under Section 7 of the National Labor Relations Act (the “NLRA”), and terminating any employees for such behavior could result in an unfair labor practice charge being filed against your company.
It is a common misconception that the NLRA applies only to unionized workforces. In fact, Section 7 of the Act applies to most private employers, including non-unionized workforces. In recent years, the National Labor Relations Board (the government agency responsible for administering the NLRA) has aggressively inserted itself into the non-union workplace. Section 7 is one of their primary focuses. Section 7 provides employees with the right to engage in concerted activities for their mutual aide or protection, which generally means they can act together to try and discuss or improve their wages, hours, or working conditions. Importantly, concerted activity loses its protection if it includes threats, dissemination of maliciously false information, or violates a company’s reasonable anti-harassment policy.
Despite these employee protections, it is critical that restaurant employers revise their employee handbook to include a comprehensive and updated social media policy. Since your employees regularly use social media, it is important to have policies that protect your company. Among other things, the policy should prohibit employees from threatening or harassing employees, vendors, and customers via social media, from violating copyright or trademark laws, and from disclosing confidential information about the company. It is recommended that you consult experienced counsel that specializes in labor and employment law regarding these issues.
On a related topic, be mindful of the risks that social media can pose in the recruitment process. Employers can learn a lot of information about an applicant via social media. For instance, based on an person’s profile and posted pictures, an employer can learn about the individual’s gender, race, national origin, disability status, union affiliation, age, marital and family status, etc. It is critical that hiring managers are trained not to base any hiring decisions on such information. For this reason, it is often best to resist searching social media sites for background about applicants until after an offer of employment has been issued, contingent on successful completion of a background check. If the offer is later rescinded due to something on a social media site, ensure that the decision is based entirely on legitimate, non-discriminatory reasons.
For additional information about this article or any other labor and employment law issue, please contact Evan M. Rosen, Esq. at (404) 586-1837 or at firstname.lastname@example.org.