The NLRB report also gives examples of how employee postings aren’t always protected. In one case, the NLRB found that an employee who posted offensive tweets was not engaged in protected concerted activity. The employee, who worked as a newspaper reporter, had a Twitter account assigned by his employer. The reporter first tweeted criticisms of the newspaper’s copy editors. However, there was no evidence that the reporter first discussed the issue with any coworkers at the newspaper. The employee was given an official warning, but he ignored it and used his Twitter account to post about a number of issues unrelated to the purpose of the account, including his criticism of a local television station. The employee was fired. The NLRB found that the employee’s termination did not violate the law, because he was fired for misconduct and inappropriate behavior, and his actions were not protected activity.
Companies must also tread carefully when deciding to use the Internet as a source of information in making employment decisions. Part of the problem is that employers may end up seeing information that they would legally not be allowed to ask for in an employment application. For example, employers may not base their employment decisions on discriminatory information such as an applicant’s race, sex, religion, or national origin. However, this information may be on a person’s Internet page. Or other information may surface in a person’s writings posted online. Once an employer learns this information, it is difficult to prove that an unbiased hiring decision occurred.
For example, in a recent case (Gaskell v. University of Kentucky, U.S. District Court for the Eastern District of Kentucky, 2010), the University of Kentucky was reviewing applicants for directorship of its MacAdam Observatory. An Internet search revealed that one of the lead candidates had published an article advocating creationism. Once the selection committee learned of this fact, dissent emerged over whether the applicant’s views on religion and science should prevent his selection. The applicant was not chosen, and he sued the university for religious discrimination. The case was settled out of court earlier this year. The university paid the applicant $125,000.
To maximize their own legal rights, companies must be proactive in setting clear policies regarding the Internet, including employee use of social media. By setting clear guidelines, companies can protect their own interests and give employees a much-needed roadmap for appropriate conduct.
Develop a plan. Companies must clearly communicate the appropriate venues for discussing workplace issues and then make sure that employee concerns are addressed. Just prohibiting workplace discussions on social media may not protect companies from NLRB actions.