It is essential that employer entities handle problems that result from employee use of entity information or data on the employees' own social media, the use of the entities' client information, or the use of the entities' confidential, personally identifiable, or sensitive information about its employees. However, if a social media post is not “malicious or reckless,” even criticism of an employer or its management may be protected when the communication is considered an attempt to garner support or rally others in the first step toward group action.

For example, five employees who exchanged Facebook comments that alleged the poor work performance of a coworker. After the subject of the thread complained, the company fired the employees for harassment and bullying. But the National Labor Relations Bureau (NLRB) found the company in violation of the National Labor Relations Act (NLRA), saying its employees were engaged in protected concerted activity.

There are many recent and remarkable examples of individuals using social media to vent workplace frustrations or occupational dissatisfaction, which in turn has caused significant conflict between the individual and his/her employer. In fact, some employment actions arising from an employee's social  media use have become so contentious that a number of employers have been charged with unfair labor practices under the National Labor Relations Act for overly broad social media policies that allegedly implement unfair workplace policies and practices.

Social media is a present, pervasive, and complex issue in the workplace that will likely only continue to be used for workplace purposes, during company time, or with company owned equipment. As employers have a legitimate interest in controlling employees' social media use for the purposes of limiting disclosure of company information and protecting the company's image, social media use policies will be the primary tool for management of social media use.

Definitions

Because employees use social media at work on behalf of an employer and for personal use, employers must handle problems emerging from this use. “Social media” includes websites that may incorporate one or more of the following:

Blogs - Web logs or journals, in which site authors and users can post textual, audio or video content, and comment on others' blog posts. Web sites such as Blogger and Tumblr enable individuals to create free-standing blogs, while numerous general and special interest sites use blog tools and message forums to engage users.

Microblogs - Sites and spaces letting users to post short blog entries. Twitter is the most widely used dedicated microblog, but other sites invite users to post short status and location updates, including Facebook and Foursquare.

Wikis - Resources or documents edited collaboratively by a community of users with varying levels of editorial control by the website publisher. Wikipedia is an encyclopedia created by the collective effort of thousands of users worldwide and maintained by volunteer editors.

Virtual Worlds - Web or software-based platforms that allow users to create avatars or representations of themselves, and through these avatars to meet, socialize and transact with other users. Second Life and other virtual worlds are used not only for social purposes but also for e-commerce, non-profit fundraising and videoconferencing.

Social Networks - Sites at which users create customized profiles and form connections with other users based upon shared characteristics and interests; sites such as Facebook and MySpace tend to foster personal social contact among “friends,” while sites like LinkedIn are oriented toward professional networking. Increasingly, businesses are establishing a presence on these and other social networking sites

Media Sharing - Sites to which users post and share videos, audio files and/or photos as well as tag them to enable searchability. Popular sites of this type include Flickr, Picasa, YouTube.

The right to communicate about work or with other workers

Even if you are not represented by a union, federal law gives you the right to communicate with coworkers to improve your lives at work - including joining together in cyberspace, such as on Facebook.

Federal law protects your right to engage in not only union activity, but also "protected concerted" activity. You have the right to address work-related issues and share information about pay, benefits, and working conditions with co-workers and with a union. You have the right to act with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, or seeking help to form a union.

Using social media can be a form of protected concerted activity. You have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media. But just individually griping about some aspect of work is not "concerted activity": what you say 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. Such activity is not protected if you say things about your employer that are egregiously offensive or knowingly and deliberately false, or if you publicly disparage your employer's products or services without relating your complaints to any labor controversy.

Cases of Note

Burke v. Ohio Dep't of Rehab. & Correction, No. 2:21-CV-48, 2024 WL 643525, at *1 (S.D. Ohio Feb. 15, 2024), appeal dismissed, No. 24-3222, 2024 WL 2972725 (6th Cir. Apr. 24, 2024)

Burke's suit alleged the following:

1. Violation of 42 U.S.C. § 1983 by a constitutional violation of the Freedom of Speech Clause of the First Amendment of the United States Constitution made applicable to the States by the Fourteenth Amendment By adopting the social media policy of the Defendant.

2. Violation of 42 U.S.C. § 1983 by a constitutional violation of First Amendment retaliation made applicable to the States by the Fourteenth Amendment by applying the unlawful social media policy of the Defendant to the Plaintiff.

3. Violation of the Due Process Clause of the Fourteenth Amendment.

Read the initial judgment here.

Hernandez v. City of Phoenix, 541 F. Supp. 3d 996 (D. Ariz. 2021), aff'd, 43 F.4th 966 (9th Cir. 2022)

Police officers brought § 1983 action against city and police chief, alleging that police department's social media policy abridged their freedom of speech and violated the Due Process Clause. City and chief moved for summary judgment. District Court judge Michael T. Liburdi held that social media policy was not unconstitutionally vague under the First Amendment, and social media policy was not void for vagueness in violation of the Due Process Clause.

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