Employers must be careful before they fire or discipline an employee because of his or her comments on social media. As a general rule, if multiple employees are using social media to discuss the terms and conditions of their employment, or one employee is using social media to speak on behalf of other employees about the terms and conditions of employment, that conduct is likely protected as “concerted activity” under the NLRA. In fact, recent NLRA decisions have shown that a social media posting by one employee about the terms and conditions of employment which is “liked” or “favorited” by other employees is likely protected as concerted activity.
Despite these constraints certain types of social media posts provide a legitimate basis for termination. These posts include the following:
Insubordination – Two newly hired employees of a teen center used Facebook to discuss how they would ignore the employer’s rules and allow the teens to “graffiti the walls”, among other things. The NLRB held these threats of insubordination justified termination in its recent decision in Richmond District Neighborhood Center.
Threats of Violence – Credible threats of violence or comments which lead to genuine safety concerns in the workplace (e.g. “I’m bringing a bomb to work”) will likely not be protected activity.
Individual Gripes – If the employees are just airing individual gripes or venting their personal frustration and not trying to address an overall workplace problem, the behavior will likely not be protected as concerted activity. A prime example is the NLRB decision in Skinsmart Dermatology, where the terminated employee posted in a Facebook group message that the employer was “full of s—“ and wrote “FIRE ME . . . make my day.
Before an employer takes any action based on a social media post it needs to determine what is being said and how many employees are joining in the discussion. That information is the key to determining what action, if any, should be taken.
The NLRB recently held that the termination of an employee because of disparaging comments she posted about the employer in a group message on Facebook did not violate the NLRA. The comments contained derogatory language and expletives, and included “FIRE ME” and “Make my day”.
The NLRB held that the comments reflected the employee’s personal contempt for her co-worker and her supervisor and not shared employee concerns about terms and conditions of employment. Therefore, the employee did not engage in concerted activity under Section 7 of the NLRA.
Before taking action against an employee because of comments on social media, employers need to consider several factors. These include, but are not limited to, the following: What is the content of the message? Are the comments based on the terms and conditions of employment? Is the employee acting alone or with or on the authority of other employees? Is there a legitimate problem at work that needs to be addressed?
Today the D.C. Circuit Court of Appeals held in a unanimouns ruling that President Obama’s appointments to the NLRB while the Senate was in recess were unconstitutional. The Court based its holding on the fact that the Senate technically remained in session during the 20 day “recess” and thus the President could not appoint a member to the NLRB without Senate confirmation.
Expect this decision to be appealed to the United States Supreme Court. If the decision is upheld, or the Supreme Court doesn’t take the case, all the decisions by this improperly appointed Board will be invalid. The majority of those decisions, including decisions on social media policies and at-will disclaimers, are very anti-employer. This will be interesting to watch, so stay tuned.
The case of Phone Dog, LLC v. Kravitz settled yesterday. Phone Dog sued their former employee, Kravitz, after he left the company and continued to use a twitter account that he had used while employed by Phone Dog. All of the settlement terms are confidenital, except one- Kravitz gets to keep the twitter account.
How could this have been avoided? By drafting a clear social media policy which states that the employer owns all social media accounts that are used or created during employment. Review your social media policy to make sure it includes language stating the employer owns the social media accounts, and if you don’t have a policy, adopt one with this language.