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DECEMBER 2, 2011

What Workers Can--and Can't--Do on Facebook

By MELANIE TROTTMAN

Companies are facing a growing number of civil charges over disciplinary actions spurred by online comments from employees, who are using the National Labor Relations Act to try to win back their jobs or get settlements.

The 1935 labor law, also known as the Wagner Act, is enforced by the federal National Labor Relations Board agency, or NLRB. The law allows employees the right to join together to improve their wages and working conditions, which includes discussing pay or other work-related issues with each other or with their employer. The law can also protect an individual who is speaking on behalf of one or more co-workers. Bottom line: there must be group activity, in intention or result, for it to be considered "protected concerted activity" that is allowable under the law. Mere griping isn't protected.

The agency is also citing employers for maintaining online policies that are overly broad in ways that restrict workers' rights, such as the right to discuss online their wages, hours and working conditions with co-workers while not at work.

The problem for employers and workers is that the guidelines being issued by the NLRB are slowly evolving case by case, making it tricky to ensure compliance with the law now being applied to what some labor experts call the virtual office water cooler.

Here are the guidelines for what workers and employers can do on social media:

Protected employee behavior -- things employees should be allowed to do without being fired:

--Workers discussing with each other pay or other workplace conditions, or an individual speaking on behalf of other workers about, or with the intention, to improve workplace conditions. The key: there has to be group activity, in intention or result. It is described under the law as "protected concerted activity."

--Name-calling -- depending on the word used and the context -- that doesn't involve physical or verbal threats.

Unprotected employee behavior -- things that could get an employee disciplined or fired:

--Mere griping solely by and on behalf of oneself, with no evidence of intended or actual group action to improve working conditions.

--Physical or verbal threats against an employer or co-worker, depending on the context.

Unlawful employer behavior:

--Maintaining a company policy that restricts workers' rights to discuss online with co-workers their wages and other working conditions.

--Firing an employee for engaging in protected concerted behavior.

Unresolved questions about the law:

--What kind of name-calling by workers is protected under the law, and what isn't? (The NLRB says it depends on the facts of the case.)

--Would negative employee postings made from a workplace computer be protected by the NLRA? (The NLRB hasn't reviewed a case involving this question but says it could depend on a company's policy about personal use of its computers.)

--What should a model employer social-media policy look like? (The NLRB's acting general counsel has yet to see one that can be cited.)