Twitter Terminations and Facebook Firings
The United States legal system is many things. It is accessible, adversarial (and yet still somewhat cooperative), slow and, most of the time, it gets things right. However, there are things the US legal system is not. Specifically, it is neither light on its feet nor able to quickly adapt to new technologies. This is actually understandable.
The courts are not charged with monitoring new technology and issuing opinions on things that may be problematic at some point in the future. Instead the court system is reactionary. It can only address those issues that come before it through the usual channels. Unfortunately this means that as new technologies are developed and adopted many issues that may seem obvious to those in the legal profession initially go unaddressed. When the issues do come before the courts or the National Labor Relations Board, the courts/agency must rely on law developed long ago – law that may not consider the nuances of how the new technology is used and operates. Perhaps the best example of this type of scenario involves social media and the rights of employers to monitor and react to an employee’s online activities.
The NLRB hears a variety of cases a year; however, I find that some of the most surprising are cases applying the “mutual aid and protection” language of Section 7 of the NLRA. In these cases the NLRB is often asked to consider to what extent an employee’s social media posts criticizing management or other employees are actually protected conduct. And, the NLRB often ignores what most people would consider completely unacceptable behavior by employees, concluding that wildly inappropriate behavior is completely protected. For example, consider the case of Hernan Perez and his employer, Pier Sixty, LLC. This 2014 NLRB opinion centered on the employee’s use of vulgar, profane and arguably obscene language on his social media accounts, attacking his supervisor in a way that very few would tolerate. After a disagreement about whether he was properly performing his job, the employee took out his phone and tweeted about his supervisor, “Bob is such a nasty motherf----- !!!!!” And in an effort to outdo himself, he followed that statement with this classic: “F--- his mother and his entire f------ family!!!!” As you might expect, the company immediately fired the employee for his unacceptable, vulgar behavior. He filed a charge with the NLRB, and the NLRB found in his favor. Their conclusion was that the employee was complaining about the terms and conditions of his employment, and therefore his action was protected conduct under the NLRA. The employer had to reinstate the employee and pay him back pay for the time he was out of work.
This case is a ridiculous result. But there is a pattern of these types of decisions by the current version of the NLRB.
In another recent case, Karl Knauz Motors, Inc. a BMW car salesman, Bob Becker, made a couple of questionable posts (on the same day) on his Facebook account. The first post included sarcastic remarks and photographs about the quality of food to be served at a about a sales event. Mr. Becker expressed a concern that the food provided (hot dogs, cookies, chips, bottled water) would negatively impact his ability to sell cars and earn commission. In the second post, Mr. Becker posted pictures and mocking comments regarding an accident at the Land Rover dealership owned by his employer and next door to the BMW dealership. In his posts, he described how a minor child of a Land Rover customer accidentally pressed the gas pedal of the vehicle causing it to run over the customers foot and sending the vehicle and salesperson into a pond. Mr. Becker’s family, friends and co-workers decided to join in the fun by making further mocking comments on both posts. The employer consider both posts to be disparaging to the business, and publicly embarrassing. Mr. Becker soon found himself unemployed. In this case the Administrative Law Judge and the NLRB did not order that Mr. Becker be reinstated as his posting regarding the Land Rover incident were not protected; however, the mocking comments regarding the food provided at the BMW sales event were protected as they related to Mr. Becker’s ability to earn commission. In addition, the NLRB required that employer rewrite its social media policy to be in compliance with the NLRA.
In the scenarios noted above, the NLRB treated the social media posts as it would treat communications made between employees at the water cooler or after work while sharing a beer. I believe this fails to consider the way that social media operates. While some co-workers of the parties making the post may be Facebook “friends” and comment on the post, I believe that most of the people seeing the post are not co-workers but are instead friends and acquaintances. In this scenario the post are likely disseminated to a much larger group that just co-workers. In addition, once a comments is “liked” the “friends” of the person who liked the comment will likely view it as well. While I agree that comments related to “mutual aid or protection” should be protected I think that the way information is communicated in social media is far different than the traditional scenarios contemplated. As a result, I think the company’s legitimate business interests in protecting its image/brand/confidential information should be more strongly considered in social medial posts that extend far beyond co-workers. Of course, this is just my opinion and there is no guarantee that the courts or anyone else would agree.
At the end of the day, any employer looking to be proactive in regards to avoiding social media missteps would be wise to remember three things. First, the NLRB reviews employer actions regardless of whether the employees are in a union or not. Second, before terminating an employee for social media issues you should have the matter reviewed by your general counsel or outside counsel to determine if the statements are protected under the NLRA. Finally, you should have in place a social medial policy that complies with the NLRA. To that end, I would suggest working with an experienced Labor and Employment lawyer to make sure your policy provides you with the broadest scope of protection while not chilling an employee’s right to “speak.”
J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.
800-333-DRIVE (3748) or www.interstatetrucker.com
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