May 4, 2016 — Pepperdine Law professor Victoria L. Schwartz was quoted in a Law360 story about workplace privacy and social media comments regarding the election, “What Employers Should Know As Election Spurs Online Rants.”
Pepperdine University School of Law professor Victoria L. Schwartz said the NLRB has offered samples in recent years of what lawful policies look like and said the agency is often willing to give the benefit of the doubt to employers that are engaging in a good faith effort to craft a viable policy.
“Employers can’t do anything to restrict employees from speaking about working conditions,” Schwartz said, adding that is a reason employers must be careful when crafting social media policies.
But Schwartz said that any employer policy must tread carefully to make sure it won’t fall on the wrong side of the NLRB’s line.
“In the context of the election, if an employer says to employees, ‘Make sure you behave civilly,’ the employer has to make really clear that they are not seeking to limit protected activity,” Schwartz said.
While employers are not allowed to actively monitor the private social media posts of employees under the NLRA, the private social media dealings of a worker could still creep into the workplace if another employee, perhaps one that is offended by a post, complains and brings the issue to management.
If such an issue causes employees’ relationships to deteriorate where their work performance is affected, then management may have to step in. But even in those cases, Schwartz said, employers have to be careful not to take any adverse actions against employees because of their political speech.
Schwartz said that private employers have a legitimate interest in keeping the workplace civil, but that they have to be mindful of the laws in their state, noting that about half of all states have laws that protect private-sector employees’ political activity.
The scope of those laws, however, depends on the particular state, according to Schwartz.
Read more on www.law360.com.