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    Can an employee legally discuss workplace issues on the Internet?


    David Goldberg, M.D., J.D.
    Dr. Labor runs a well-organized dermatology office. Virtually every action taken is guided by some office policy. All policies are carefully crafted and placed within a policy and procedure manual.

    All employees are required to read the manual and sign off on the required policies. One of the policies mandates that staff not discuss anything about the office on any social media site.

    Recently, one of Dr. Labor's staff members sought a raise in his hourly pay. Dr. Labor denied the raise. When the employee suggested that he was underpaid, Dr. Labor replied that he had conducted a survey of the staff and the employee was, in fact, overpaid. The disgruntled employee went on Facebook and described the situation with his boss.

    Dr. Labor found out about this and promptly fired the employee for violating his office policy on not discussing office-related issues on social media.

    The now-former employee filed a lawsuit against him with the National Labor Relations Board (NLRB) alleging that his former boss violated his First Amendment rights. Dr. Labor's medical malpractice carrier will not pay for Dr. Labor's legal fees. Can such a lawsuit have any merit?

    Protected speech

    The issue here, of course, is one that involves discussion of work-related issues by employees on various forms of social media. This issue is whether employees have a right to free speech under Section 7 of the National Labor Relations Act (NLRA), which hinges on the phrase "protected concerted activity."

    The NLRB has issued three memoranda detailing which rights employees have while at the same time spelling out for employers how their social media policies at work can infringe on these rights.

    In a nutshell, employees are free, either in person or online, to discuss workplace issues (including wages and benefits) with each other and with third parties. The only restrictions allowed by employers involve the online publication of trade secrets, customer lists and the like.

    If an employee has a grievance about a manager, the employer dermatologist may not want that "dirty laundry" aired online. However, such grievances are acceptable social media fodder unless the employee acts alone, engaging in an individualized gripe, so to speak.

    It is concerted activity between one person and another that is allowed. Discussions between the employee and others cannot be stopped by the dermatologist. If, on the other hand, the disgruntled employee simply put out the facts to embarrass the employer, the activity would not be "concerted" and therefore not "protected," either.

    Social media policies

    An example of an "unlawful" company social media policy would be a policy that states, "Don't release confidential guest, team member or company information."

    Such rules, the NLRB has found, are unlawful. Instructions that employees not "release confidential guest, team member or company information" would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves, and these activities are clearly protected by Section 7.

    The NLRB has long recognized that employees have a right to discuss wages and conditions of employment with third parties, as well as with each other. One can expect that eventually there will be court challenges to this policy. Only time will tell whether such challenges will determine that this interpretation holds sway.

    As an employer, Dr. Labor can have a wide variety of rules that impact employee activities. However, his control over his employees' activities on social media is highly restricted because of NLRB's broad interpretation of employees' First Amendment rights.

    David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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