Don't Fire that Employee for a Facebook Posting Just Yet
By David
Farren, Esq. & Jerrie Martinez-Palombo, M.Ed., SPHR
If it hasn't
happened to your company yet, it will. One of your employees may
post a disparaging remark on-line about the company, company
practices or a member of management. The employee may even
use profanity in the posting. However, before you react and fire
the employee you should know that, depending on the nature of the
posting, the employee may be engaging in what the National Labor
Relations Board ("NLRB") considers "protected
activity."
Section 7 of the National Labor Relations Act (the "Act"), applies
to both union and non-unionized work forces. It states:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection." An employer's retaliatory
conduct, such as interfering with or disciplining an employee
because of that employee's protected concerted activity violates
these employee rights guaranteed by the NLRA and is illegal under
29 USC
§158(a)1.
At the time the Act was ratified, the digital world did not exist.
Recently, however, the NLRB has made it clear that it is in tune
with our digital age and that social networking sites such as
Facebook and Twitter, as well as personal blogs, are platforms
where employees may engage in "concerted
activity."
On August 18, 2011, the NLRB released a General Counsel Report
which analyzed its investigation of approximately 14 cases
involving social media and alleged violations of the Act.
(See
https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases).
Though the Report does not draw definitive lines as to what
constitutes protected activity, it does cite guidelines for
deciding when an employee's use of social media may be considered
protected activity. For example, postings that may be
protected activity will:
- Discuss terms and conditions of employment
- Have co-workers involved in the posted discussions
- Directly relate to or come about from earlier discussions
- Invite coworkers into
action
Though the General Counsel Report is helpful, it does not give
employers enough guidance. For example, in one particular
case, management was referred to as a "scum bag." Many
employers would instinctively think that this person should be
terminated immediately. Yet the NLRB ruled that this employee's
posting was protected activity under the Act because it was: (a)
made outside the workplace, (b) was not accompanied by threats, and
(c) was "provoked" by the employer's allegedly unlawful
behavior.
The General Counsel Report also briefly discussed how broad
employer social media policies can violate the Act. Social
media policies that prohibit posting pictures depicting the
company, using the company logo or barring discussions about the
company and/or management are considered unlawful.
Designing narrowly focused social media policies appears to be the
best approach for employers. The NLRB recommends that social
media policies contain a disclaimer informing employees that the
policy does not apply to activities protected by Section 7 of the
Act.
Many of the 14 cases analyzed in the NLRB General Counsel Report
did not involve unionized employers, and by January 31, 2012, the
majority of private employers will be required to post a notice
entitled "Employee Rights under the NLRA." For your
convenience, we are providing a link to the required posting:
https://www.nlrb.gov/sites/default/files/documents/1562/employeerightsposter-8-5x11.pdf.
It is clear that the NLRB will continue to flex its legal muscles.
Employers are encouraged to seek legal counsel before taking
disciplinary action against an employee for a social media posting
or before implementing a social media policy.
About the authors: David Farren is an
attorney at the Phoenix law firm of Jaburg Wilk and works in employment
law, antitrust, and commercial
litigation. He can be reached at 602-248-1048
or at dnf@jaburgwilk.com.
Jerrie Martinez-Palombo is a human resource director and frequently
contributes to employment law articles. She is SPHR certified
and holds a masters degree in Human Relations.
This article is not intended to provide legal advice.
Always consult an attorney for legal advice for your particular
situation.
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