Five Tips to Address Negative Facebook and other Social Media Postings (4/11)

Recent cases and settlements show the hazards of terminating or even disciplining, employees who make negative comments on social networking sites.  Find out the five things you should first consider before taking any action on negative postings.

How should you deal with employees who post negative comments about your organization on Facebook or other social networking sites?  If you are like most employers, your first reaction may be immediately to discipline or even terminate the employee.  And, as a general rule, assuming that your employees are “at will,” you may be within your legal rights to take some action based on Facebook or other social media postings.  (As a reminder, an employee is considered “at will” if he does not have a contract guaranteeing employment for a specific period of time (such as one year) or limiting disciplinary action or termination to certain circumstances (such as gross misconduct or only after following certain procedures).)      But, employers have been targets of recent court and National Labor Relations Board cases when they terminated employees who “mouthed off” about their workplace online.  So, before you take action, you should consider five factors to determine what type of discipline is appropriate.   1.     Consider how your organization found out about the comments, and particularly whether you found out about them through lawful sources.  For example, did another employee or manager who is the employee’s Facebook friend tell you or did a manager find out by accessing the employee’s Facebook page without authorization?  In a recent court case, Pietrylo v. Hillstone Restaurant Group, 2008 U.S. Dist. LEXIS 108834 (D.N.J. 2008), the court awarded both compensatory and punitive damages to an employee because his employer violated the federal Stored Wire and Electronic Communications and Transactional Records Access Act (SWECTRA) by accessing two employees’ MySpace accounts without authorization.  That case involved employees who were posting offensive comments about their employer.  But, if you read the employee’s comments because you are the employee’s Facebook friend or another employee who is a Facebook friend reported the comments, then you should be able to take action. 2.     Determine whether the employee was acting alone or engaging in “concerted activity” protected under the National Labor Relations Act (NLRA).  The NLRA is the federal law that allows employees to join unions, but the Act also gives all employees, not just union employees, the right to engage in “concerted activities for collective bargaining or other mutual aid or protection.”  This entitlement has been interpreted to protect nonunion employees who question the terms and conditions of their employment, such as their wages, work hours, and working conditions.  So, if an employee is complaining on Facebook or other social media about his working conditions to other employees, or if he is acting alone but on behalf of other employees to change working conditions, then these complaints may be protected under the NLRA.      A recent settlement between the National Labor Relations Board (NLRB) and a Connecticut ambulance service, American Medical Response, addressed this type of social media posting.  The NLRB brought a claim against the ambulance service after the employee was fired for violating the employer’s social media policy by posting negative comments about her manager on Facebook and alleged that the employer’s social media policy was overly broad and interfered with the employee’s NLRA rights to engage in concerted activity.  According to media accounts of the case, earlier in the day, the employee had requested union representation because of poor performance reports, and her supervisor threatened her with discipline.  She was commenting on these issues in her Facebook postings, and other employees also commented on the employee’s posts.  The employer settled the case with the NLRB and agreed to revise its policy to ensure it did not interfere with employee’s NLRA rights.  (The employer also came to a separate agreement with the employee regarding the termination, but the NLRB did not provide details on that claim.)        Although the case was settled and the outcome is not binding on other employers, what is clear from this case is that employees have another legal avenue to pursue if they are terminated for Facebook or other social media postings that address working conditions.  So, if an employee discusses work-related conditions with other employees on her Facebook page, the comments likely are protected by the NLRA, and you should not discipline the employee solely for the comments.  What is less clear is what the outcome would have been if the employee only had made negative comments about her supervisor or her workplace without specifically addressing her working conditions.  For example, if she had posted an expletive-laden tirade targeting her supervisor or her employer, those comments likely would not have been protected.  Accordingly, you must look at the context of the posts before taking action. 3.     If the employee’s comments are not protected by the NLRA, you should consider the nature of the comments and his past performance record.  Is the employee complaining about his job situation or making disparaging or inappropriate remarks about his employer?  If the employee has never complained about his job and is generally a good employee, you may want to have the employee’s manager talk to him about his comments and determine what steps you all can take to improve his working situation.  However, if the employee is in fact a poor performer and is constantly complaining in the workplace and also referred to his manager using obscenities on Facebook, you may want to take action based on all of these factors (not just the posting).  Be careful, though, in your disciplinary choice.  While you most likely could discipline or even terminate an employee just based on social media postings expressing his discontent, your other employees likely would perceive this action as being heavy-handed and not warranted if there are no other underlying performance problems. 4.     Make sure you are treating the employee consistently under your policies and procedures.  In other words, if you discipline the employee, make sure you can show that he is being treated in a similar manner to other employees who have violated similar company work rules.  For example, you may have a policy similar to the model policy in the Personnel Policy Manual online, Behavior of Employees, Chapter 801, Comment (1)(b) that states employees are expected to refrain from behavior that is offensive or undesirable or contrary to the Company’s best interests that you could take action upon.  Or you might have a social media policy that describes proper personal use, such as in the model Use of Communication Systems and Social Media policy in Chapter 805.  Of course, as discussed above, your policies may be subject to scrutiny by the NLRB if they are overbroad or if they could be interpreted to prevent employees from exercising their legal rights. 5.     As a final prudent step, if you have any question about the nature of the employee’s comments, consult with your attorney before taking disciplinary action.  The legal standards that apply to Facebook and social media use and disciplinary action will continue to evolve, rapidly, and what was okay last year may not be so in six months.  The use of Facebook and other social media Web sites has exploded over the last few years (Facebook alone has over 500 million users), so you can expect more cases dealing with social media postings and workplace rules in the future.  Accordingly, you may need expert legal counsel to help you sort the issues out in the interim so that you do not become the next test case in court.