The Edmond Sun

April 26, 2013

ASK A LAWYER: Pitfalls abound in limiting employee speech on social media

By Matt Hopkins
Special to The Sun

EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.



Q: Can my company prohibit its employees from posting comments on Facebook and Twitter?

A:
The law regarding social media is rapidly changing. That specific laws applicable to Facebook and Twitter comments are greatly expanding should be no surprise. Social media is a new beast, and new beasts are almost always followed by new legislation that attempts to adapt existing law to new factual situations. The rapid spread of automobiles spurred new laws regarding use of public roadways. The television prompted new laws that limited free speech on public airways. Social media is the same.     

We already know that long-standing laws, such as the law of defamation, apply to comments made on social media. Courts are continually in the process of determining how the laws apply and what limits may be placed on free speech. Employers that want to limit employees’ rights to make comments for the world to see are faced with a vast unknown. The unknown, though, is becoming better defined.

Several issues arise. Can an employer prohibit its employees from posting issues and concerns they face at work on Facebook or Twitter? The simple answer to the question is yes, but not always. An employer can, under certain limited circumstances, impose some restrictions on its employees’ postings.

The National Labor Relations Board is the main governmental entity attempting to define the rules. The NLRB calls certain employee comments about working conditions “protected concerted activity.” As to such communications, even non-union employers may be barred from prohibiting a single employee from trying to induce group action or from seeking to bring employee complaints to the employer’s attention. Groups engaged in concerted communications about working conditions are allowed to discuss issues over pay and safety concerns and the like.  

But now that employee complaints are aired to the world online instead of to co-workers at the coffee machine, can such speech be limited? The NLRB generally does not allow an employer to discipline an employee who takes his complaints about the employer online. It generally does not allow the employer to prohibit the employee from discussing the employer, its employees or competitors — even to the world.

The only principle truly settled in this area of law, is that this area of law is unsettled. Changes are in place. More changes will come. Before attempting to limit employee speech, consult an attorney and make an educated decision.



MATT HOPKINS is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to questions@lldlaw.com.