It’s difficult for an employer to keep an open mind when a staff member complains publicly about the workplace. It’s easy to categorize this as workplace misconduct and discipline the employee for disparaging the company name. But employers who jump too quickly to employment action may end up with a lawsuit on top of the reputational damage already suffered.  Legalities aside, all employee complaints should be investigated immediately as a matter of policy. But taking disciplinary measures without addressing the issues and understanding the laws can get an employer into trouble.

“The logic that comes into play for me is that if, in fact, an employee is in a position to damage an organization by virtue of what they say online, and what they say may be false or misleading, and it’s available to the entire community, or the entire world… then I’d start by having a professional conversation with that employee,” says Charlie Judy, Global Director of Human Capital Strategic Development/Operations at Navigant Consulting and talent management blogger at HRFishbowl. “Now, can an employer take adverse employment action against that employee as a result? That’s where the grey comes in.”

What the Law Says

The National Labor Relations Act (NLRA) protects the rights of both union and non-union employees to discuss wages, hours and other terms and conditions of employment with co-workers and others. When this discussion takes place on social media, say on somebody’s Facebook wall, it is still protected activity and employers may not discipline employees for it.

This doesn’t necessarily mean that employees can post whatever they want about their company online. While employees have the right to discuss wages, hours and working conditions, they don’t have the right to defame or disparage a company, its products, management or employees, as Judy points out. One person expressing views online is not considered to be a protected activity. However, when others from the same company join the discussion, employers need to step back and assess the situation before making any bold moves.

“I’m not an attorney – and one should be consulted when interpreting any employment law – but there is sometimes a gap between how a law reads on paper and how it realistically plays out in the workplace.  And every organization needs to consider its unique circumstances when doing so.,” says Judy.

He recommends having open discussions with employees to avoid the kind of public griping that turns into protected activity.

“We have an obligation to create the kind of environment that promotes open and constructive dialogue in the workplace, even if sometimes it produces something we don’t want to hear,” says Judy.

“It needs to be done in a way that advances the organization and not with any sort of vindictive or direct attempt to harm the organization. I think those two things are distinct. I care more about whether employees are abiding by the culture and shared values that we aspire to than I do about whether I have the legally defensible right to punish them for not having done so.”

Bringing it Internal

“Let’s say that somehow I get a hold of a tweet that a manager sent out that is disparaging to the organization,” says Judy. “My first step is to have a conversation with that manager and find out why it was they felt compelled to send it; understand what’s behind that disparaging remark to see whether there’s something we need to address.”

The conversation should convey the desire for employees to come forward with concerns, and the fact that the employer is in a much better position to address them than the hundreds of people who are following the employee online.

“We want to bring it internal,” says Judy, “not because we want to have control over the messaging, but because it’s the only way we can have a response to it, and we want to do that consistently.”

A culture of open dialogue and trust can go a long way in ensuring that social media doesn’t become the venue for workplace gripes.