Should social media rants get you fired?

Should an employee be fired because of social media rants? Some business experts feel that employees that sound off should be fired because they don’t uphold the character and face of company. The National Labor Relations Board (NLRB) has heard these types of cases since 2010 and began issuing decisions in 2012. The NLRB usually sides with the employee, reasoning that the employee’s social media postings are protected activities under the National Labor Relations Act, specifically-Employee rights to organize and speak out against unfair labor conditions.

If the rants take place on company time, using company resources, the employee could be disciplined for infractions other than the actual posting. But when the postings occur outside of work, the line has been drawn between employee rights and violating policy.

Beyond firing someone for something you don’t like on social media is the policy prohibiting the rant. If the company doesn’t have a policy then little action can be taken. Many businesses, especially small business, have no policy regarding social media. Employee handbooks and company policy need to be  living documents. It seems like there is always a new topic to be covered. Social media policy is an extension of that organism. Although social media and employees going off on their employers are not new, the policies governing how businesses handle it are still evolving. And the NLRB helps draft those policies each time it offers a decision. Businesses have to stay abreast of the issues and the decisions being made.

Defending the honor of the company or getting rid of a bad employee, firing someone for his or her rants on social media can be a dicey situation. Opening up the company as well as the person responsible for the firing to court action.

See our blog archive for other posts relating to social media policy issues:

Enforcing company policy May 2015

What is your social media policy? March 2016

Social media checks July 2016

What is your social media policy?

            

Hiring and maintaining quality employees is a difficult process, in addition there is the challenge of keeping up with the ever-changing landscape of employment issues. The last few years employers have had to navigate through several major adjustments, some changes are ongoing. For example, the EEOC has published new guidelines on the use of criminal background checks. The “Ban the box” movement is rapidly spreading through State and local governments. If you are not familiar with the term “Ban the box”, it is the phrase used to describe the movement to have the question, “Have you ever been convicted of a crime”, removed from employment applications. (Have you ever been convicted of a crime? February 3, 2013) Maryland passed such a law, which took effect October 2013. In addition to rule changes, Federal authorities are monitoring employer’s actions for FCRA violations and National Labor Relations Act violations.

           

Researching social media

As technology changes it affects the way we do business. Not only in our daily commerce but also in the hiring process. Employees have always talked around the water cooler and outside of work in the privacy of their cliques, outside the earshot of company officials. With social media, employees have a broader base to which their complaints are heard and also are more open to discovery. Bosses are taking to the Internet to see what their employees are doing on social media. Human resource professionals are also using social media as part of their screening process. Hiring surveys have found that nearly 60% of interviewed HR professionals use social media as part of the applicant’s screening process. This is almost double the percentage from surveys conducted in 2012. In 2013, Federal labor bodies began hearing social media related cases and applying existing laws to the new medium for worker dissent-social media.

            The Internet has made it very easy to check on employees, but whether you are hiring or checking on an employee you may want to resist the urge. If you are researching job applicants and decide to do some Internet research, you may learn details about the applicant that you don’t know from the application, this could affect your hiring decision. If you learn something such as race, sexual orientation, illness, or pregnancy, and use that knowledge in your hiring decision, you may be in violation of the Civil Rights Act of 1964 and have trouble with the EEOC. 

            If you’re searching to see what employees are up to around the virtual water cooler and learn some disparaging information you may be enticed to act. Some employers have retaliated against employees for social media postings, which brought the cases before the National Labor Relations Board (NLRB). As the result, the NLRB has ruled, in most cases, for the employee.

           

Federal law

Title 7 of the Civil Rights Act of 1964 prohibits employers from refusing to hire any individual, or otherwise to discriminate against any individual, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin

The National Labor Relations Act, Section 7 states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”.

When using social media searches, employers can easily let information they learn infiltrate the decision process. Even if they claim they haven’t used information illegally, it would be difficult to prove otherwise.

            The NLRB ruled in 2013 that employees could use social media to…well…complain. As you read above, the NLRA protects employees’ rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. When an employee is complaining on social media about the boss, or conditions, or hours, they have that right. Additionally, the NLRB has ruled that employees can use confidential company information, company logos, or photographs of company property. The basis of the rulings are the employee’s Section 7 rights to act in concert and share company information regarding their working conditions in such ways as leaflets, picketing, etc. in an electronic medium.

One of the first rulings for employees came on April 27, 2013. The NLRB, Administrative Law judge, ruled in favor of three employees fired as the result of postings on Facebook about their employer and work conditions. The Board ruled that the employees were engaging in a protected concerted activity. As a result, the employer must offer full reinstatement to the fired employees, make the employees whole for any loss of earnings or benefits, and remove any mention of the firings from the employee’s records. Case 20-CA-035511, 359 NLRB No. 96

            In our blog post, Enforcing company policy May 8, 2015, a NLRB decision is highlighted in which a company claimed violation of obscenity rules as the reason for firing an employee for a Facebook rant.

Enacting policy

Companies have responded to the growing phenomenon that is social media by enacting policies that control what their employees can and/or cannot post. The NLRB has ruled that companies cannot have policies that restrict the use of social media by employees, nor can acts of retaliation be taken against employees as a result of social media postings. Furthermore, employers cannot ask employees for passwords or retaliate against employees for failure to provide passwords.

            Social media laws are also being enacted at the State level. In 2012, Maryland enacted the country’s first such law. The User Name and Password Privacy Protection and Exclusions law prohibits an employer from requesting or requiring an employee or applicant to disclose access information to their personal social media accounts.

So the question is- what is your social media policy? Is there one in place and does it address management’s use as well as workers? HR professionals can help draft your policy; always have any new policy or policy changes reviewed by an attorney.

Websites like Policy tool for Social Media can assist in drafting a policy. The site takes the user through a series of questions that results in a completed policy.

Enforcing company policy

The National Labor Relations Board ruled in favor of an employee fired because of a rant on Facebook against the employer. Perhaps more significantly, the company cited violation of its obscenity policies, which the NLRB disregarded because the policy was found to have been unenforced in past instances. Underscoring the importance to enforce policies regularly and fairly. Not just when it is convenient for management. 

The case

By a two-to-one vote, a three-member panel of the National Labor Relations Board upheld an administrative law judge’s findings that an employer unlawfully discharged an employee because of social media comments, including strong obscenities that were personally critical of a company manager. (Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.) 

The company’s employees expressed interest in union representation, based in part because of concerns that management treated them “disrespectfully and in an undignified manner.” Those efforts resulted in a successful organizing campaign, after which the Union was certified as the exclusive collective bargaining representatives. Two days before that election a long-term employee was working as a server at an event. During the cocktail service a company manager allegedly approached and in a loud voice and in front of guests addressed the employee and two other employees, using an unnecessarily harsh tone, and waiving his arms. Upset with the manager’s treatment, the employee took a break and, outside of the banquet facility, posted from his phone a message to his personal Facebook page. The message referred to the manger as a “NASTY M***** F***er” and a “LOSER!!!!,” stated “f*** his mother and his entire f***ing family,” and ended with “Vote YES for the UNION!!!!!!!” After being made aware of that posting, the company fired the employee for violation of its obscenity policy. 

Decision

The panel determined the firing violated the NLRA because the Facebook post was deemed to be protected concerted activity. Although the company argued that the employee had violated company policy regarding obscene language, it was determined that since 2005, the company had issued only five written warnings to employees who had used obscene language, and had discharged no one on that basis. Further, it was found that the employee's use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by the company.” 

The NLRB first ruled on “Facebook firings” in October 2012. The NLRB has ruled that postings on social media regarding the way employees are treated or working conditions are protected concerted activities under the National Labor Relations Act. The company’s defense of policy violation in the aforementioned case did not stand up because the policy itself was overlooked.

Employee handbooks and rules are necessary for a safe and favorable workplace. However, when violations of policies are overlooked the workplace can become a dangerous and/or hostile environment. Additionally, employee morale tends to be low because of managerial indifference or inequitable enforcement of violations. When policies are enforced as a “CYA” measure, reviewing entities rarely rule for the company.

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