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Rebecca Ward

Rebecca Ward Marketing Writer

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HR and Social Media; Which Facebook posts are cause for legal dismissal?

Social media is saturating the workplace in both marketing efforts and personal use. So what happens when employees turn to social media to discuss or complain about workplace experiences? Is it free speech or is it legal to terminate the offending employee? The National Labor Relations Board (NLRB) is working to define employee and employer rights in regards to social media. Unfortunately, the laws are still evolving, leaving room for varying interpretations.

Currently, employees are protected under the National Labor Relations Act (NLRA) if they are expressing shared concerns about working conditions, which is referred to as “protected concerted activity.”

Recently the NLRB has ruled in several cases, each using the protected concerted activity as the foundation for their decision.  The NLRB has found that concerted protective activity occurs when employees discuss shared concerns among themselves before making any specific plan to engage in group action, meaning that the concerted activity is engaged “with or on the authority of other employees, and not solely by and on behalf of the employee [her]self.”

Let’s look at the following examples to understand what is and is not considered to be protected concerted activity:

Example 1 - Small medical office employee fired for disparaging remarks about their employment in a Facebook message.

An employee of a small medical office sent a group message on Facebook with the original intent of planning a social event, including 7 current and 4 past employees. After the planning had concluded the conversation turned to hiring speculation and generalized griping. The employee wrote:

“They [in reference to the employer] are full of s___. . . . They seem to be staying away from me. . . . You know[,] I don’t bite my [tongue] anymore. . . . F___. . . . FIRE ME. . . . Make my day.” The employee was the only individual to take part in this portion of the conversation.

Another person who had been on the message thread, but had not taken part in the conversation, later showed the exchange to the employer. The offending employee was later fired, with the employer stating it was obvious that the employee was no longer interested in working at the medical office.

Upon investigation, the NLRB concluded that the employee’s termination was legal, as she did not involve shared employee concerns over the terms of employment, and was therefore not protected concerted activity and was merely griping, which isn’t protected by the NLRA.

Example 2 – Retail clothing employees fired for discussing Section 8 of the NLRA law and its relationship to their store on Facebook.

Employees of a retail tourist store complained that because their store closed an hour later than other local stores they felt unsafe when leaving the store in an isolated deserted area. When their immediate manager disregarded their concerns, they went to upper management to who agreed to close the store earlier in the evening to protect the employees’ safety. When their immediate manager found out about their interaction with upper management, he verbally lashed out. The employees took to social media, posting about their situation, one even mentioned section 8 of the NLRA.

“Hey dudes[,] it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation [of Section 8 of the NLRA.] See you tomorrow!”

Another employee who saw the postings showed the manager, who immediately fired the offending employees.

Upon investigation, it was found that the employees’ Facebook posts were part of their efforts to change their store hours based on safety concerns. As a result the firing was illegal.

Example 3 – Social Work employees fired for seeking mutual aid on Facebook.

A social worker, who had a history of criticizing other employees, texted her coworker that she felt she didn’t work hard enough and was going to go to management. The criticized employee  took to Facebook about the accusation, inciting the disgust of several of her coworkers who also felt attacked:

“…a coworker[,] feels that we don’t help our clients enough at […]. I about had it! My fellow coworkers[,] how do u feel?” Four off-duty employees responded to her post, sharply disagreeing with the accuser’s alleged critique of their work. Several colleagues posted angry, expletive-laden responses. “Try doing my job. I have five programs,” wrote one. Another wrote, “What the hell, we don’t have a life as is.”

The accuser viewed and responded to the Facebook posts and then presented them to the executive director. All employees who took part in the Facebook conversation were terminated. While the executive director claimed that the Facebook posts violated harassment policies, the NLRB found that the posts were “concerted activity” for “mutual aid,” their first step in defending against threatened complaints to management.

For employers, the bottom line is that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection, which includes Facebook and other social media channels. If you do choose to terminate an employee for social media conversations, consult with legal counsel first, as the NLRA is a complicated and evolving regulation.

Want to know more?  Read here.

Remember that another part of social media is that an employee can be fired for disparaging the employee or its clients if the employee has a very specific policy and the comments interfered with the employee’s work, other employee’s work or the operation of the company.

Want to learn more on what is considered a disparaging remark? Read here.

Contact KPA for a sample social media policy at info@kpaonline.com.

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