Workplace Issues

Slow the Trigger When Firing over Twitter

Why companies should tread carefully before firing employees for making disparaging remarks about them on social-media sites.
Sara Jane ShanahanSeptember 29, 2011

Have you ever been tempted to discipline an employee for complaining about the company on her Facebook page? Do you even know if your employees are openly talking about your company online?

A recent report by a governmental agency should prompt companies to ask these questions and revisit their social-media policy – or, as is likely the case, draw one up. Given the widespread use of social media by employees, both during and outside of work, by analyzing this issue today companies could save money down the road and minimize the risk of a discharged or disgruntled employee filing a complaint.

The report, issued by the Office of the General Counsel of the National Labor Relations Board, described recent cases in which the NLRB found that companies had run afoul of the law by interfering with employees’ rights to engage in concerted activities that are protected by the National Labor Relations Act.

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Union and nonunion employees alike are entitled, under federal law, to engage in protected, concerted activity for their “mutual aid or protection.” Put simply, employees have the right to discuss their work conditions with one another, and to lobby together to change those conditions. Employers may not punish their employees for soliciting and participating in such conversations. In its recent report, which summarizes social-media cases decided during the past year, the NLRB confirmed that communications related to working conditions that take place on social-networking platforms, such as Facebook and Twitter, can constitute protected, concerted activity, as long as the employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

As a result, when disciplining employees for social-media activities, employers should consider two key questions. First, does the discussion involve working conditions, as opposed to, for example, inappropriate commentary that reflects poorly on the employee or the company’s reputation? Second, is the conversation aimed at addressing the needs of a group of employees, rather than the interests of a single employee?

The NLRB found that employers had violated the law by terminating employees who engaged in social-media conversations about a variety of work-related topics. In one case, a salesman for a luxury-car dealership posted photographs and commentary on his Facebook page criticizing a sales event at which the dealership served hot dogs and cookies. Both before and during the event, employees at the dealership discussed their disappointment with the quality of the food. They worried that it would send the wrong message to customers and inhibit their ability to make sales and, therefore, earn commissions. The NLRB found that the salesman’s posts related to work conditions, arose out of group discussions, and expressed the sentiments of his coworkers. Moreover, they were not disloyal or disparaging of the employer’s product. Accordingly, it was a violation of law to discharge the salesman in these circumstances.

In contrast, the NLRB has refused to provide protection for employees who author postings that do not involve protected, concerted activity. In one instance, the agency determined a discharge was proper after a bartender disparaged customers on his Facebook page and, among other things, wrote he hoped customers would “choke on glass as they drove home drunk.” In addition to these remarks, the bartender also complained that he was “doing the waitresses’ work without tips.” Notably, the bartender’s complaint about tips did not warrant protection because he was not acting in a joint effort with other employees.

Similarly, in another case, an employee was properly disciplined after he complained about his supervisor on his Facebook page because his posts reflected an “individual gripe.” Postings that do not relate to terms and conditions of employment or do not seek to involve other employees in concerted action are not protected.

Moreover, a company’s social-media policy can violate the law when it is so broad that it reasonably could be construed to prohibit employees from engaging in protected, concerted conduct, or if the policy is used as a basis for disciplining an employee for exercising protected rights. For example, the NLRB concluded that a policy prohibiting employees from engaging in “inappropriate discussions” about the company, management, and coworkers “could reasonably be interpreted to restrain [protected] activity.” Accordingly, when preparing corporate policies related to Internet postings and social-media usage, companies should inform their employees that they will not be punished for engaging in communications supporting their right to discuss working conditions. The policies should provide examples of the type of “inappropriate” comments the company seeks to discourage.

Companies should be able to articulate why particular conduct was improper and not protected when they discipline employees for social-media activities. Taking the time to consider these issues in advance – with regard to both policymaking and individual instances of discipline – can protect the company’s money and reputation in the event that a discharged employee later claims that his activities, while embarrassing for the company, were protected by federal law.

Sara Jane Shanahan, a partner in the litigation department of Sherin and Lodgen LLP in Boston and co-chair of the firm’s Social Media and Digital Technology Practice Group, focuses her practice on complex business litigation and insurance-coverage disputes.