Not all social media posts by employees are protected as free speech. Both employers and employees need to approach this issue with caution.
Some employees think they are free to post whatever they want on their Facebook pages. They think posting a “like” of another person’s Facebook posting could never affect their job status. Wrong. Some employers think they have the right to fire someone over any arguably offensive or inappropriate post. Also wrong. It’s complicated. And court rulings on the subject don’t make the rules clear.
The latest ruling by the United States Circuit Court of Appeals for the Second Circuit touches on Facebook “likes.” Here’s the scenario: An employee of a bar was fired for liking a Facebook post but the court ruled that her firing was illegal. The post she liked came from a former employee who complained on her Facebook page about the bar’s tax accounting practices. The former employee claimed they resulted in her owing more than she expected in income tax. Another current employee saw the post, “liked” it, and was then fired. The National Labor Relations Board said her termination wasn’t legal and that the “like” was protected. Why? Because the employee was reacting to an ongoing labor dispute over the bar’s tax withholding policy. Under the National Labor Relations Act, employees have the right to discuss the terms and conditions of their employment with each other and to take action with co-workers to improve working conditions. It’s called “concerted activity” and it’s illegal for employer to fire, demote, transfer or take any adverse action against an employee who engages in this type of activity.
In another case, an employee of a Connecticut ambulance company complained about her boss on Facebook calling him a “dick” and a “scumbag.” Other workers posted supportive comments on Facebook. The employee was fired. The NLRB attacked the company’s policies barring workers from criticizing the company and its supervisors. These policies also broadly prohibited employees from depicting the company in any way using the internet. The case resulted in a settlement under which the company agreed to amend their broad, vague policies.
On the other hand, employees shouldn’t assume they are free to post whatever they want on social media. Only concerted activity is protected under the act. In one case, a newspaper reporter posted tweets that were critical of the paper’s editors. He had not discussed his concerns with other workers, had not sought other employees’ involvement in the publication, and had ignored warnings from the employer about the tweets. This was an individual gripe and was held to not be concerted action protected under the Act.
In another case a bartender posted complaints about a co-worker overcharging customers. The court ruled that these posts were not protected. The reason was that the bartender had also aired his gripes with customers of the bar.
Each case is decided on the unique facts involved, but here are a few lessons employers and employees can take from these decisions:
- Make sure their policies are clear, specific and limited so that they don’t restrict protected activity. Specific examples of prohibited conduct and statements help here.
- Warn employees about troubling posts before taking job action, if possible.
- Investigate fully whether protected concerted activity by employees is involved before taking job action. Find out if the person making the complaint has spoken to other employees or whether other employees have this concern.
- Investigate whether the employee has brought this concern to his or her supervisor. If so, it may be another sign of concerned (and protected) activity.
- Find out if their employer has a social media policy. If so, they should read and understand it.
- Understand that their individual gripe is not necessarily entitled to protection. If you haven’t shared your concern with your employer and/or with other employees, you post at your own risk.
- Realize that if a post includes threats, obscenities, discriminatory or insubordinate statements it may not be protected even if concerted activity is involved.
- Know that even commenting on or liking a post by another employee may cost you your job if that post is not protected.
An employee’s social media postings are subject to legal standards and some “grey area” rules. When it comes to social media, we suggest you recall the moment in every TV detective show when the officer says, “Anything you say can and will be used against you.” In many cases, it can and it will. Proceed with caution.