Websites like Facebook and Twitter have given millions of people a chance to publicly express thoughts and opinions they otherwise would have kept private. Social media also leaves a record of the views its users express. Some of these views are benign, but others are controversial.
Unsurprisingly, many people use their social media profiles to discuss work. Many people are unhappy in their work life, and it should come as no surprise that these are often the topics of social media activities. This has required courts and federal agencies like the National Labor Relations Board (NLRB) to determine how well-established standards in labor and employment law apply to the era of social media.
While this is still an evolving process, a general principle has emerged: employees are generally protected against any negative employment consequences for engaging in activities and discussions which are already protected by federal labor laws, but they are not protected for “mere gripes” about their employer or their working conditions.
The most important set of pre-existing legal rights protected on social media are called “protected concerted” activity. This is an umbrella term for a broad category of rights including the right to address work-related issues with co-workers, including discussions about pay, benefits, and working conditions. Just as employers cannot sanction or fire employees for engaging in these activities in private conversation, they cannot sanction them for engaging in them through social media either.
Protected concerted activity is distinguished from mere gripes. “Protected concerted activity must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.” Gripes, on the other hand, consist of complaints – often profane, bitter, or angry – directed at an employer or management. An employee of a retail store posting “we need to go on strike!” on her Facebook page or to creating a Youtube video attempting to persuade her coworkers that they should join her in a strike would likely be engaged in protected concerted activity. The same employee posting “F*** [Name of employer]” or posting a profane triad against her employer would simply be griping and therefore subject to punishment by her employer.
While social media will no doubt raise many interesting employment law related questions in the future, for now one principle seems to have emerged: what was protected in person is protected on social media, and what is unprotected in real life is unprotected on social media.