Disciplining and terminating employees for “bad behavior” in social media continues to be a hot topic of discussion for all employers. As many of you know, these so-called “Facebook firing” cases have drawn the attention of the National Labor Relations Board (NLRB), which views social media sites as an open venue for employees to engage in activity protected by the National Labor Relations Act (NLRA).
Please remember that the NLRB’s position on social media and discipline impacts all employers – not just employers with a unionized workforce. Thus, it is important for all employers to take heed of the legal minefield surrounding Facebook firings, and to proceed with caution when responding or reacting to an employee Facebook posting about the workplace.
The NLRB is so interested in social media, that it issued a memorandum to all of its regional directors in April 2011 requiring them to submit all “[c]ases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter” to the NLRB’s General Counsel’s office. In the months that followed, the NLRB issued several opinions and memoranda analyzing whether discipline and/or discharge as a result of an employee’s Facebook posts was lawful or not. Most recently, at the end of January 2012, the NLRB’s Acting General Counsel issued a new report providing the latest insight into the NLRB’s rulings in social media cases.
The two major issues examined by the NLRB in these cases were (1) whether the employee’s social media posts constituted “protected concerted activity” (in layman’s terms, the right of employees to join together to, among other things, discuss terms and conditions of the workplace); and (2) whether the employer’s written policies relating to social media use reasonably could be viewed by employees as restricting, inhibiting or prohibiting conduct protected by the NLRA.
Case Studies of Protected vs. Unprotected Conduct
Here are a few examples of the cases discussed in the recent NLRB report:
Case Study No. 1: In this case, several employees interacted and discussed on Facebook some “drama” at the popcorn packaging plant where they worked. The “drama” involved the following:
- An employee being written up for being “a smart ass;”
- Having to work on a Saturday to make up for lost time.;
- That the “[e]mployer complains about who goes on break and for how long and that they were not doing what they should be doing;”
- One employee posted that she “hated that place and couldn’t wait to get out of there” and that “the Operations Manager brought on a lot of the drama and that it was the Operations Manager who made it so bad.”
The NLRB found these posts were protected because “it is well established that employee complaints and criticism about a supervisor’s attitude and performance may be protected.” Additionally, the posts were protected because they “arose as part of an employee discussion regarding shared concerns about terms and conditions of employment.”
Case Study No. 2: In this case, in contrast, the NLRB concluded the termination was lawful. Here, an employee of a home improvement store was upset because her employer reprimanded her in front of a regional manager for failing to perform a task that she had never been instructed to perform. The employee discussion consisted of the following:
- First, during her lunch break, the unhappy employee used her cell phone to post a comment on Facebook “that consisted of an expletive and the name of the Employer’s store.”
- Four Facebook friends, including one coworker “liked” the comment, and two other people commented on it.
- About half an hour later, the employee posted again, commenting that the employer did not appreciate its employees.
- Importantly, however, no coworkers responded to this comment. A few weeks later, the employee was terminated for her Facebook posts.
The NLRB upheld this termination, concluding that the Facebook comments were “merely an expression of an individual gripe.” The employee “had no particular audience in mind” when she made the post, “the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers.”
The NLRB will also look at whether the employer’s written policies violate the NLRA. We have included two samples of policy language analyzed by the NLRB:
- Policy language prohibiting “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media” (emphasis added);
This first policy was found unlawful because it was too broad. The Board felt that the use of the term “disparaging comment” could “reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently.”
- Policy language which prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic” (emphasis added.)
To the contrary, the second policy was not unlawful because, according to the Board, it was so closely linked to protected class status. As a result, the Board felt it could not be reasonably construed to restrict employees’ rights to discuss the terms and conditions of their employment.
- A policy concerning the protection of confidential information, stated, “in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.”
Here, the Board found this policy unlawful because by limiting employee discussion to discussions conducted in an “appropriate” manner, the policy implicitly prohibited “inappropriate” discussions, and discussions relating to terms and conditions of employment may be protected even if the employer finds them to be “inappropriate.” The Board concluded that an employee would reasonably interpret that rule to prohibit protected activity such as “criticism of the Employer’s labor policies, treatment of employees, and terms and conditions of employment.”
So what should employers do when faced with an employee’s objectionable social media posts? It is easy, after seeing inflammatory Facebook posts, to get carried away and want to take immediate action against the offending employee. A better practice? Given the intense focus on this issue by the NLRB, take the time to gather the facts and, when in doubt, contact legal counsel. While each case is intensely fact-specific, here are a few questions to consider when evaluating the risk involved in disciplining or terminating based on social media conduct:
- Is the employee a supervisor? Supervisors are not protected by the NLRA.
- Is the employee threatening another employee or violating an antidiscrimination policy? Such conduct is not likely to be protected.
- Do the posts relate (directly or indirectly) to terms and conditions of employment? (Some common examples include discussions and complaints regarding compensation, promotions, breaks, or management/supervisors.) This might be protected.
- Is the employee Facebook friends with any co-workers, and did any of the co-workers respond to the posts? This impacts whether the conduct is protected.
- Do any of the posts indicate (again, directly or indirectly) that the employee or the co-workers are actually planning to “do something” about whatever it is they’re complaining about, or are they “just venting”? Venting may not be protected, but planning to take action likely is protected.
- Are the policies you plan to enforce overly broad? Could they be construed as inhibiting protected concerted conduct by an employee? Are you enforcing those policies for the first time? In the case of policies, it is far better to review and evaluate your policies on social media or conduct before you plan to enforce them. If you have not done so, now is the time!
As, unfortunately, is often the case, the answers to the questions above are rarely black and white. The law in this area continues to develop at a rapid pace, so a Facebook post found lawful today, may not be found lawful six months or a year from now. It is critical, therefore, to stay up-to-date. Additionally, because written policies are increasingly coming under attack, it may be prudent to update policies more often than usual.