I promised to discuss the the National Labor Relations Board’s opinions for you. First, remember that it does not matter if the company is unionized. Also, remember we are looking at private companies. Government organizations offer additional protections to employees in terms of the first and fourth amendments.
Upon reviewing the document, linked here, I found that the NLRB decisions come down to three words. Protected concerted activity.
If the posts on social media involve protected concerted activity, and you discipline or fire the employee involved, that is a no go. Here’s the problem. The NLRB doesn’t really give great guidance on what represents protected concerted activity.
I will remind you though, that the NLRB opinions blow with the winds of change in Washington, DC. The NLRB approved a Sears social media policy under the Bush administration. But since then, it has found all social media policies reviewed to be over-broad. The NLRB has not, however, found all behavior to be protected concerted activity. As a result, it is very important that you and/or your counsel stay on top of any changes in the rulings and the law.
The conclusion we can draw, at this point, is to be very careful about making sure social media policies are narrowly drawn, and to be very careful not to over-react when someone posts something negative about a company or supervisor. It is best to take a look at the behavior, identify if the behavior is protected or really a personal attack on the company or an individual. Document all investigations and reasoning. Then, respond accordingly. Make certain you have an appropriate employment attorney to advise you on your decision and investigation. It is always best to involve counsel early in the process, don’t make a decision, fire an employee, and then involve an attorney.