Restore Civility in Response to Derogatory Remarks on Social Media

Employers should respond to employees’ derogatory comments on social media about their employers, colleagues, and political candidates in a way that aligns with legal obligations and employee relations concerns.

Employees’ rights under the National Labor Relations Act (NLRA)—with their shifting interpretations by the National Labor Relations Board (NLRB) and courts—must be weighed against employers’ responsibility to comply with equal employment opportunity (EEO) laws and focus on maintaining a civil workforce to improve employee relations.

An employer that disciplines an employee for engaging in offensive speech that has any relation to union activity or workplace issues—such as wages, hours, or working conditions—might violate the NLRA, said John Ring, an attorney with Morgan Lewis in Washington, D.C., and a former chairman of the NLRB.

In some cases, the NLRB has protected speech that would be considered hostile work environment conduct in violation of EEO laws, he added.

“This puts employers in a difficult position of having to comply with conflicting legal requirements—the NLRB saying offensive speech is protected while the EEOC [U.S. Equal Employment Opportunity Commission] says employers have an obligation to stop offensive speech,” Ring said.

Many employers, when confronted with the conflict, will choose to stop the offensive speech and avoid EEO liability even if there is a risk of an NLRB charge, Ring said.

“Not only is the liability for EEO violations often much greater than an NLRB violation, but employers that value a respectful and inclusive workplace will not tolerate offensive speech or conduct,” he said.

Shifting Standards

In the 2020 General Motors LLC decision, the NLRB established one standard for assessing whether employee misconduct, including profane or abusive outbursts, was protected under the NLRA. This standard allowed employers more leeway to discipline employees for such conduct. The NLRB’s new test replaced several standards that applied in different circumstances. One applied to workers’ interactions with management, another applied to postings on social media and conversations between employees, and a third standard covered offensive conduct on the picket line.

Under General Motors, the NLRB’s general counsel first had to prove that an employee’s protected activity was a motivating factor for disciplinary action. “If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct,” the board said.

SHRM supported the decision.

“This is an important victory,” said Emily M. Dickens, SHRM chief of staff,  head of government affairs, and corporate secretary. “Proper civility, respect, inclusion, and tolerance are core values of the modern workforce. Employees simply cannot, and should not, be allowed to use abusive and profane language under the guise of ‘concerted activity’ and find themselves protected by federal labor law.”

Last year, in a decision called Lion Elastomers LLC II, the NLRB overruled General Motors, making it harder for employers to discipline or fire workers engaged in offensive conduct while conducting activity protected by the NLRB. The new ruling reinstated a setting-specific standard for evaluating employee behavior. This meant different standards applied depending on whether the behavior happened in a workplace meeting, on social media, or during a strike.

However, on July 9, the 5th U.S. Circuit Court of Appeals vacated the NLRB’s 2023 Lion Elastomers decision and ordered the board to apply General Motors in the Lion Elastomers case. The 5th Circuit found that the NLRB had deprived synthetic rubber products manufacturer Lion Elastomers of its due-process rights.

Nonetheless, the NLRB remains “likely to find offensive speech protected,” Ring said. “It is important that managers and supervisors are trained to consider the NLRB’s position. Employers cannot simply react as most might automatically do and discipline an employee who engages in offensive or hostile speech in the workplace.”

Many employers may choose to discipline employees for such speech regardless of the NLRB’s position, but such decisions should be made thoughtfully, he said. “Employers may be able to reduce the NLRB risks by focusing discipline solely on the offensive conduct while acknowledging employees’ right to otherwise engage in protected activity involving workplace concerns.”

Publicity and Employee Relations Concerns

Don’t just consider the legal issues, said Richard Greenberg, an attorney with Jackson Lewis in New York City. Also consider how the employer’s actions could impact the company’s public relations, client/customer relations, employee relations, and culture, he recommended.

An employee posting about their involvement with an organization or initiative while making a clear affiliation with their employer could create publicity concerns for the employer and, regardless of whether the affiliation is clear, raise internal HR issues if other employees with different views become aware, he noted.

If someone posts about frustration with the company’s response to an issue in a negative way, unwanted publicity and HR issues might arise, he said.

However, individuals as part of organizing drives might post negative messages about the company, some of which might be protected by law, Greenberg cautioned.

“As to politics, the political discourse today includes not only support for a particular view or candidate, but also criticisms or hateful speech about opposing views, which could result in divisiveness and hostility among co-workers,” he said.

A respectful climate in which individuals are reminded to maintain positive relationships with co-workers is essential, he noted.

Employers should act appropriately and recognize HR considerations, Greenberg said. Ensure “lawful policies are in place as proper policies governing conduct,” including misconduct creating a hostile work environment due to statements outside the workplace.

But the business should conduct a protected concerted conduct analysis and review defenses before disciplining a nonsupervisory employee for statements about the company, Greenberg said. Supervisors are not covered by the NLRA, except for under limited circumstances.

Related Resource: 2024 SHRM Civility Index