A Candid Forum
Practice Safe Social Media Policies New federal guidance helps businesses navigate minefield of social media landscape by Carrie Pixler Ryerson If an employee is exchanging ideas with a co-worker at the water cooler about their low wages and is fired as a result, the employer has likely violated the employee’s rights under the National Labor Relations Act. In the context of social media, however, what if an employee rants about his or her wages, hours or working conditions on Facebook or another social media platform? Can the employer discipline or even fire that employee? Much like the water cooler hypothetical, the traditional standard under the NLRA still applies; unless employees are engaged in a dialogue with co-workers concerning wages, hours or working conditions, they will not have the NLRA’s protection. Until recently, there was little guidance from the National Labor Relations Board about what employers can and can’t do in response to social media rants. With increasing frequency, the NLRB has addressed some of these issues head-on in an attempt to provide guidance to businesses that have employees expressing work-related frustrations through social media. This federal authority applies in Arizona and is helpful to both employers and employees as they attempt to navigate uncharted waters. The benefits of a considered policy are two-fold. First, a social media policy provides uniform guidance for company-wide decisionmaking with respect to employee discipline for improper conduct. Second, an employee on the wrong side of a disciplinary action can look to the objective criteria in the policy for guidance going forward and also to quell any thoughts that he or she was treated unfairly. At the very least, even absent a social media policy, employers need to be wary of disciplining employees for conduct on social media, given the recent influx of NLRB interest in the topic. Who Is the Employee Conversing with on Social Media? In JT’s Porch Saloon & Eatery, the NLRB addressed a situation involving a bartender
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who posted a Facebook message about his employer’s tipping policy in response to a comment from one of his relatives. The bartender also called his employer’s customers “rednecks.” Responding in kind, the company sent the bartender a Facebook message informing him that he was fired. Although the bartender’s comments concerned his tips or wages, the NLRB found the firing to be lawful because the bartender was merely responding to a post from a relative, not a co-worker. The NLRB underscored that the employee was not attempting to encourage group action among other employees to talk with management. Along the same lines, in Martin House, the NLRB examined a situation in which an employee who worked the night shift at a mental institution engaged in a conversation with personal friends on her Facebook wall through a series of posts while at work. The employee remarked that it was spooky to work there at night and also made comments about the mental institution’s patients. After a former client of the mental institution saw the posts and reported the employee to her supervisor, the employee was fired. The NLRB again upheld the termination because the employee was “merely communicating with her personal friends about what was happening on her shift” and, therefore, was not discussing wages, hours or working conditions with co-workers. What Is the Employee Talking about with Co-workers? In Wal-Mart, a case in which Walmart was the employer, an employee made several profane comments about his supervisor on Facebook to co-workers. In response, the co-workers expressed sympathy and also found humor in the employee’s situation. Significantly, none of the frustrations expressed by the employee called for action by his co-workers or were intended to induce them to rally behind him to complain about the
supervisor. Ultimately, the NLRB upheld the termination because the employee’s “postings were an expression of an individual gripe.” Similarly, in Schulte, the NLRB addressed a situation in which an employee’s supervisor invited him to join LinkedIn, a professional networking site. Upon acceptance of the invitation, the employee jokingly identified his job title with the company as “$$$$tard.” Several months later, once the employer discovered the vulgar job title, the employer terminated the employee for disparaging the company in violation of its Electronic Communication Policy. The NLRB upheld the termination as lawful, finding “[t]he LinkedIn ‘joke’ clearly is not protected.” Social Media Policies Offer Protection for Employers The NLRB pronouncements make clear that unless an employee is either engaged in a dialogue with co-workers or about to engage co-workers in a dialogue concerning wages, hours or working conditions, the employee will not have the NLRA’s protection. These distinctions can go a long way toward helping employers define permissible and impermissible conduct for employees in a social media policy for the workplace. Fennemore Craig, P.C. fclaw.com National Labor Relations Board nlrb.gov
Carrie Pixler Ryerson, an attorney in the Phoenix office of Fennemore Craig, P.C., practices in the areas of appeals, and labor and employment law.