Beyond the Water Cooler: Speech and the Workplace in an Era of Social Media

Source: Ann McGinley, Ryan McGinley-Stempel, Hofstra Labor and Emploment Law Journal, Vol. 30, No. 1, Fall 2012

From the abstract:
…This article analyzes the multitude of issues concerning employees’ use of social media outside of work and the clash between employers’ interests in maintaining effective management control and the employees’ interests in speech. It analyzes the recent changes in interpretation of the National Labor Relations Act, which, in some instances, protect employee speech on social media. At the same time, the article discusses the limits of the employee rights as interpreted by the NLRB and analyzes the possible conflicts that the NLRA rights may create with policies designed to protect employees from harassment based on characteristics protected by Title VII, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), and other anti-discrimination statutes.

The article concludes by making recommendations about how to interpret the NLRA to protect employee speech that furthers democracy in the workplace, but also how to change the law to protect individuals from harassment and to recognize employers’ interests in maintaining efficiency, good relations among workers, and consumer respect for their products. Specifically, it recommends a targeted federal statute—one that balances employees’ interest in engaging in protected speech outside the workplace (particularly in the context of social media) against employers’ duty to comply with Title VII and other anti-discrimination statutes. This proposal offers an attractive solution because it gives employers and employees notice and is less vulnerable to the inconsistency of the current regulatory landscape….