The Hospitality Lawg would like to thank Leah Williams for contributing to this post. Ms. Williams focuses her practice on practice on the defense of employers against claims of wrongful termination and discrimination.
The dawn of Social Media presents several issues for the hospitality industry to grapple with. One that has received significant media attention lately is whether an employer can terminate an employee based upon the employee’s tweets or Facebook posts. But as with other “new” scenarios presented by the Internet, the answer appears to rely on the application of “old” principles.
Last month, the NLRB’s Acting General Counsel issued a report on when it is lawful and unlawful to discipline employees for social media activities. The report focused on a number of advice memorandums. In the four instances where the employee speech was found to be protected under Section 7 of the National Labor Relations Act, the General Counsel noted that:
- the communications concerned the terms and conditions of employment;
- the subject of the communication was brought to management’s attention or the employee had reason to believe the communication would result in a discussion with management;
- the communications addressed the shared concerns of employees; and
- the communications were directed at coworkers and/or discussed with coworkers.
In the other advice memorandums where it was determined that the employee’s use of social media was not protected activity, the facts demonstrated that the communication was not aimed toward the employee’s coworkers, that the communications did not concern the terms and conditions of employment, and/or that the employee did not try to raise the issue with management or expect that a dialogue with management would result.
The General Counsel’s report, as well as the September 2 social media-focused post-hearing decision in Hispanics United of Buffalo Inc., send a clear message. Hospitality employers must tread very carefully in seeking to promulgate policies that regulate the activities of employees on social media sites:
- Certainly, any social media policy which seeks to regulate discussion among employees concerning the workplace or their terms of employment will be deemed unlawful and overbroad by the NLRB to the extent that it regulates protected concerted activity under Section 7 of the NLRA.
- Defenses for disciplining an employee who engages in concerted activity are very limited. Swear words, insults and even defamation are in most cases insufficient to render the communication unprotected.
These principles are consistent with long-term NLRA precedent that holds that employee conduct must be significantly outside the realm of normal workplace conduct to lose protection. Accordingly, hospitality companies are advised to consult with legal counsel before implementing employee social media policies.