OSSA Legal Blog - Risky Business: Firing Employees for Social Media Postings

By Gerald B. Chattman & Allan P. Sweet

Imagine this:  You’re a manager for a company and you’ve just found out your employee has been posting on Facebook that he and fellow employees haven’t had a raise for years because the company has to make bribes to stay in business.  This is bad for countless reasons, whether true or not.  But what can you do about it?  Don’t be so quick to fire him and welcome to the land of social media cases.

Social media cases have become an increasing portion of the caseload at the National Labor Relations Board.  The issue has sparked a great deal of interest in what rights employers and employees have in relation to social media activities and whether an employer can fire an employee for tarnishing comments made on sites like Facebook, Twitter, etc.

These cases are generally decided on established law under the National Labor Relations Act.  The Act covers both union and non union employees in relation to their rights to associate in concerted activities for the purpose of mutual aid or protection in employment.

Here are two illustrative examples that have recently been decided by the National Labor Relations Board – there is a difference, see if you can tell:

• A car salesman at a luxury car dealership was fired for comments made about a dealership event to release a new car model.  Before the event, the general sales manager held a meeting about it and of note among the sales staff was the menu -- hot dogs, cookies and snacks from a “warehouse club,” and water.  After discussion, the consensus among the sales staff was that the event was too “cheap” for a luxury car dealer and the event would send the wrong message to their clients, negatively affecting their sales and commissions.  During the event, one employee took pictures with other salespeople with the food.  A week later he sarcastically posted that he was happy to see  the employer had gone “all out” for the car launch and posted the pictures.  The post got back to the employer and posting-employee was fired.  The NLRB found the employer in violation of the Act.

• The owner of a restaurant/bar fired a bartender-employee for remarks made publicly on Facebook in a discussion with a family relative where he expressed his disgust and frustrations about his job -- that he had not had a raise in five years, that he was doing waitress work without tips, that the employer’s customers were rednecks, and that he hoped they choked on a glass as they drove home drunk.  When the employer saw the conversation on his Facebook page, he was fired.  The NLRB found the discharge was proper.

What’s the difference between the two?  It’s small, but significant.  In the first one there was “protected concerted activity.”  In the second, there wasn’t.

So, then what is “protected concerted activity” under the Act?  Employees participate in “protected concerted activity” when they join together in pursuit of a common goal related to mutual aid or protection concerning the terms and conditions of employment.  And when one employee acts with or on the authority of other employees and not solely by and on behalf of himself, he, too, is engaged in a concerted activity.  Employers then violate the Act when they know of an employee’s protected concerted activity and, in spite of that, discipline the employee.

Applying this rubric to social media is very concerning for employers.  Employees now have a very easy, public platform on which to engage in concerted activity.  That activity can be viewed by customers, creditors, partners, and the media outside the company; possibly irreparably damaging the company’s reputation.

In response, many employers are implementing social networking polices.  But some hastily prepared policies are actually creating liability for employers when managers fire employees for conduct that violates the policy but is protected under the Act.  A carefully-drafted, lawful social networking policy can reduce exposure to liability by clearly defining rights and expectations, in addition to helping boost productivity during work time by keeping employees on task.

In light of developing law and technology, if you or your clients have a social networking policy, make sure it has been recently reviewed by knowledgeable counsel.  And if you don’t have a policy, consider your exposure and give thought to whether a policy might help limit the exposure. 

If you have questions involving your business or your own personal affairs, please feel free to call either Jerry 216-615-7354 or Allan at 216-615-7327 and if you have any topics that you would like us to discuss, don't hesitate to drop us an e-mail at gchattman@bdblaw.com or asweet@bdblaw.com.