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Facebook Firings: Status is risky

Can employers fire employees for derogatory Facebook posts? How about terminations for tweets on Twitter? The answer is yes, however, federal law may protect certain employee social media communications and as the technological world—and its impact on the workplace—continue to evolve, it’s important to know your company’s status.

Proskauer, an international law firm, recently surveyed more than 120 multinational employers, to learn that nearly half of all businesses do not have social media and networking policies in place, despite the fact that 76 percent use social networking for business purposes. In addition, 43 percent of respondents have reported employee misuse of social networks.

The National Labor Relations Board (NLRB), which is the federal agency responsible for enforcement of the National Labor Relations Act (NLRA), has recently taken a keen interest in this area. The Office of the General Counsel of the NLRB issued a report on social media cases in August. Two recent cases have been tried to Administrative Law Judges (ALJs) and provide guidance as to the limits that the NLRA may place on such terminations.

The first case, Hispanics United of Buffalo, Inc. (HUB), involved an employee who frequently criticized other employees’ job performance and threatened to inform the employer’s executive director. Another employee posted on Facebook, “A coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?”

Several employees responded to the post, but no one used the employer’s computers because it was not a workday. The executive director subsequently terminated the five employees who made posts, claiming their conduct constituted bullying and violated the employer’s policies.

The NLRA states that it is “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by the NLRA, which, also, provides that “[e]mployees shall have the right… to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The ALJ found that the Facebook posts were protected concerted activity because they were reacting to criticism of the employees’ job performance. The ALJ further held that “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by [the NLRA].”

The second recent Facebook-related termination decision was Karl Knauz Motors, Inc. In that case, an employee and other salespeople commented during a meeting that providing low-end food to customers at a dealership’s luxury car launch event was not appropriate. At the launch event, the employee took pictures of the food.

Later, in an unrelated event at a dealership across the street with the same owner, a driver accidentally drove a Land Rover into a pond. The employee again took pictures. He subsequently posted the pictures and critical comments on Facebook. The employee later removed both posts at the employer’s request, but the employer subsequently terminated him.

The ALJ determined that the food-related post was protected concerted activity because the employee and others had discussed the inadequacy of the food offered at the launch event; the customers’ reaction could have impacted sales, which would have affected the salespeople’s commissions and the tone of the post did not raise to the level of disparagement that would eviscerate the protection of the NLRA.

However, the ALJ found that the accident-related post was neither protected nor concerted. That post had nothing to do with the terms and conditions of employment and was made by the employee alone, without any discussion with others. Finding that the employee was terminated solely due to the accident-related post and not the food-related one, the ALJ determined that his termination did not violate the NLRA.

As these cases show, the ever-increasing use of social media creates unique challenges in determining when businesses may properly terminate employees for inappropriate use of social media. So, what can employers do to protect themselves against the actions from disgruntled employees? To start, companies should implement social media policies for employees. Such policies should:

1. Prohibit the disclosure of confidential/non-public information that could affect the company’s stock price, revenue or general reputation.

2. Preclude the unauthorized use of company logos, trademarks and copyrighted material in social media posts.

3. Provide examples of best practices for social media communications (e.g. be truthful and accurate; avoid obscenities, slurs and any other offensive language; make clear that any posts are the employee’s personal view/opinion; use proper spelling and grammar; use good judgment in all posts).

4. Encourage employees to raise concerns internally through the proper internal reporting channels. If your organization does not have at least two complaint reporting channels for employees, establish them and communicate them to employees.

5. Advise employees that improper social media communications could result in discipline but, given the legal authority above, avoid using broad language that could mean that any post the employer finds to be inappropriate would result in discipline.

Every industry is living in and subject to a new technological world. Regardless of whether you deliberately create a digital presence for your company, it likely has one. While you might not be able to control the content of posts made by your customers and the public, I recommend that you influence the content of the posts made by those who you can influence: your employees.

Anne B. Wilde is an employment and ERISA employee benefits attorney. She is the Principal of The HR & Benefits Advisor, PLLC, which advises employers and plan sponsors. Anne can be reached at anne@TheHRandBenefitsAdvisor.com or www.TheHRandBenefitsAdvisor.com.

About Anne Wilde