Constitutional case law on the right to free speech makes a distinction in the restrictions imposed based on the situs of the speech. At the simplest level, if the speech occurs in a public forum, then restrictions must pass tougher scrutiny to comply with the First Amendment to the Constitution's free speech clause. If the speech occurs in a private forum, then the restrictions imposed are subjected to less stringent standards for compliance with the free speech clause.
With the rise of social media websites, employers promulgated very broad restrictions governing their employees' use of these sites when the employees' posts pertain to the workplace. Referencing the traditional distinction for scrutinizing free speech issues, these employer restrictions warranted less stringent standards because the speech is regulated in private forums- the employer's workplace.
The Federal Government has now stepped in to challenge the employer restrictions using a law that governs labor practices as opposed to regulating speech. I discuss the facts of the case because they are instructive as a potential road map for future challenges by employee advocates.
The employer, an emergency medical services provider, demanded that one of its employees submit a written incident report in connection with an ongoing investigation that had the potential to lead to disciplinary action for the employee. The employee requested that a union representative assist her with the preparation and submission of the incident report. The employer denied that request. The employee submitted the report and received disciplinary action as a result. The employee subsequently made entries on her Facebook account about the working conditions to include the incident and the people involved. When the company became aware of the postings, the employee was terminated for violating the company's Internet posting policy.
The question that comes to mind from this scenario is, "Does the employer break the law by terminating an employee for submitting posts about the workplace to a social media website?" The short answer is Yes. The National Labor Relations Act ("NLRA") protects the rights of employees to communicate with each other in order to better the working conditions of their collective employment. Note that although the case referenced above includes a union, there is no need for the worker(s) to be represented by a union for the worker to receive the protection of the NLRA. Whereas in the past, the NLRA was used to protect the workers' rights to discuss the workplace conditions via public awareness campaigns using leaflets, by contacting the media, through bulletin board postings, or through conversations among workers in the workplace; the NLRA now extends to postings made by the employee on social media websites.
From a legal standpoint, this case is very interesting because the policy issue being decided effects an employee's free speech. However, the mechanism used to protect the free speech is not the 1st Amendment but the NLRA which governs fair labor practices. Some view this approach as an end-run around the public-private distinctions of the free speech analysis. The legal community, specifically the defense bar is watching the above-referenced case to see how far the National Labor Relations Board goes in applying the NLRA. Stay tuned to the Higa & Gipson, LLP blog for developments.
In the interim, if you are not sure whether your company's Internet policy complies with the law, then contact Ronnie Gipson at gipson@higagipsonllp.com or (415) 655-6820.
