Navigating the social media can be tricky for both employers and the people they hire. For example, determining whether it’s lawful to terminate an ambulance service employee who called her supervisor a “scumbag” on Facebook may seem a no-brainer for some employers, but this real-life situation could present an intense dilemma for others.
The vagaries of employment law and social media prompted the National Labor Relations Board to issue its first report, which consists largely of brief case studies involving firing disputes over employee postings on Twitter and Facebook arbitrated by the NLRB.
The NLRB report, released on August 18, describes the thinking behind the agency’s decisions in a 14 firing cases involving social media. The report was prepared by Anne Purcell, associate general counsel in the Office of the General Counsel.
“Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules,” wrote Lafe L. Solomon, NLRB acting general counsel, in the report’s introductory letter.
The authorized and unauthorized use of social media sites in the workplace has risen dramatically in recent years. Launched respectively in February 2004 and March 2006, Facebook and Twitter rapidly gained mass popularity. Facebook users, for example, rose from 100 million in August 2008 to an estimated 750 million users in July 2011.
‘Protected Concerted Activity’
When the ambulance driver mentioned above was terminated, the NLRB determined the firing was unlawful, stating her Facebook post happened outside the workplace and didn’t interrupt the work of any employee; the post was about “supervisory action”; and there were no verbal and physical threats. Her post was provoked by the supervisor’s “unlawful refusal” to provide the employee with union representation for guidance in writing an incident report about a customer complaint about the employee’s work, NLRB found.
The most compelling element of the woman’s case according to the NLRB was that the employee’s Facebook comment drew supportive responses from the employee’s coworkers, which the agency declared “protected concerted activity”—a legal term describing what activities workers are allowed to perform without being penalized by their employer.
Citing prior legal cases, NLRB described the woman’s activity as a discussion involving the interests of other employees and not just on behalf of one employee: “[T]he Board’s test for concerted activity is whether activity is ‘engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.’ Concerted activity also includes ‘circumstances where individual employees seek to initiate or to induce or to prepare for group action’ and where individual employees bring ‘truly group complaints’ to management’s attention.”
‘Overcooked Hot Dogs and Stale Buns’
Another case cited in the report documents a car dealership salesman who was fired for criticizing a sales event by posting that customers could enjoy “overcooked hot dogs and stale buns.” The post included photos of the food and several coworkers positioned in front of the snacks.
The NLRB concluded the employee was engaged in concerted activity because several employees were displeased with the planned food choices and the employees discussed their frustration among themselves.
“We found that he was vocalizing the sentiments of his coworkers,” the NLRB wrote.
Social Media Miscreants
At least two cases cited in the report resulted in the agency finding in favor of employers discharging social media miscreants. The NLRB didn’t dispute the firing of a newspaper reporter for offensive “Tweets” with sexual content, because it didn’t relate to the terms or conditions of his employment or seek to involve other employees in issues related to employment.
The NLRB didn’t dispute the firing of a bartender, either, saying his Facebook complaint about an employer’s tipping policy was to a relative, not an employee, and the issue was never raised to management by any bartender.
The NLRB report also documents several cases where the agency overturned employers’ social media policies that subjected employees to discipline for engaging in “inappropriate discussions” about the company, management, or coworkers.
The NLRB found unlawful, for example, a company policy that prohibited an employee from posting Facebook pictures of fellow employees engaged in the act of picketing using signs featuring the company’s name.
Paul Kersey, director of labor policy at the Mackinac Center for Public Policy, a Michigan-based research and education institution, said social media comments can get out in front of a much larger audience than just coworkers.
“I don’t see where [Purcell] acknowledges the ways that a message can spread rapidly on social media—much faster than through the old ‘grapevine’ of conversation or written memos, or even emails,” Kersey said. “A Facebook ‘gripe’ meant for friends and coworkers can spread a lot further and faster than might have been intended even by the employee. On first glance this aspect seems to be neglected. But at least the Acting General Counsel isn’t blowing off the existing limits. Under this administration I would have expected worse.”
Tom Gantert ([email protected]) is capitol correspondent for the Mackinac Center for Public Policy in Midland, Michigan.
“Acting General Counsel Releases Report on Social Media Cases,” National Labor Relations Board, August 18, 2011: http://nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases