One of the questions I often get from supervisors and employers is “What control do I have over my employee’s conversations?” That is a great question and the best answer is, it depends! Many employees think they can say and talk about anything because we have the freedom of the First Amendment. However, the First Amendment, which does protect freedom of speech, only stops intrusion from the federal government. It does not provide that person the same level of protection when they are employed by a private sector employer.
However, there are other laws and protection that employers should be aware of before banning topics or certain conversation from your employees. One to be concerned about is the National Labor Relations Act (NLRA). While most people may associate this only to unions, this act can come into situations with private sector employers as well. The NLRB, the board of the NLRA, is always looking to protect employees’ rights to improve the terms and conditions of their employment. I have audited many handbooks over the years and have seen language regarding disciplinary actions when employee discuss wages or other protected employment topics. It’s good practice to check and make sure you are not prohibiting employees from using your phone or email system for “Non-work” reasons. Why you ask? If you read the NLRA lawsuit against Purple Communications that happened a few years ago, you will see that very sentence in their handbook was perceived as preventing employees from discussing working conditions, unionization, and so forth by prohibiting non-work reasons by phone or email. While we would like to encourage employees not to discuss pay or use the phone for personal reasons, we are not allowed to prevent, harasses, or discipline an employee who engages in protected activities.
Other protected concerted activity could also include two employees having a conversation about their working conditions, their boss, or other employment topics while on social media. Don’t be quick to judge a post, even if it sounds disloyal to the company or maybe has profane language in it. There have been many court cases over the years where employees have been disciplined for their social media posts, but courts ruled they were protected speech. It doesn’t mean employees can talk bad about your customers, share confidential trade secrets, or other protected company data on social media. And some industries have more laws protecting data, such as the medical field and the law known as Health Insurance Portability and Accountability Act (HIPAA). Knowing what is protected and not protected can help reduce the risk to your company. A recommendation would be to review your social media policy, make sure you understand and are clear on what is prohibited, and ensure that those policies can’t be perceived as restricting protected discussions or activities.
Also, don’t forget to check your state laws. Some states have laws protecting lawful off-duty conduct. So, not only knowing the NLRA is important, but knowing what your state allows and other laws for your industry is equally important when drafting your handbook and policies.
If you would like more information on drafting handbooks, creating social media policies, or have questions, reach out to OmniaHR today.
