22 May Facebook Firings: Think Before You Leap
Terminations based on employees’ Facebook posts (or posts on other social media sites) are nothing new. The pace of such firings reached such a crescendo three years ago that the National Labor Relations Board (NLRB) issued a legal memorandum summarizing how it had ruled in a variety of cases brought to the Board. In a nutshell, the NLRB believes that Facebook and other social media platforms for many employees have become “the new water cooler,” a phrase used by NLRB chairman Mark Gaston Pearce.
The NLRB says postings and exchanges among employees working for the same company might fall under the category of “concerted activity,” involving “protected speech.” Specifically this refers to certain discussions (negative or otherwise) about wages and working conditions. An activity is defined as concerted when “an employee acts ‘with or on the authority of other employees, and not solely by and on behalf of the employee himself,'” the memorandum explained. Protected speech involves discussion among employees which could lead to organizing and starting a labor union.
Employers cannot prohibit or impede such employee conversations, whether they occur face-to-face or on the Internet. However, the boundaries of concerted activity and protected speech are not always clear, and are constantly the subject of judicial interpretation and refinement.
One of the cases noted in the NLRB’s memo involved the firing of five employees of a social services agency after they held a Facebook discussion concerning staffing levels and employee performance standards. The messages included a negative entry about another employee, who had made frequent critical comments regarding the overall job performance of employees of that agency. The criticized individual became aware of the online comment, and complained to her supervisor that she was the victim of “cyber bullying.” The next day the five participants in the dialog were terminated.
The NLRB first ruled that the Facebook postings involved concerted activity, because they began when one employee asked for guidance from the others on the issue of job performance within the organization. The Board also concluded it was protected speech, based on its opinion that “it was clear from the context that the statements implicated working conditions,” and were not character assassination.
Overly Restrictive Policies
In another case, the NLRB ruled an employer’s social media policy, laid out in its employee handbook, was too restrictive. “It prohibited employees from making disparaging remarks when discussing the company or its supervisors, and from depicting the company in any media [including social media] without company permission,” the NLRB memorandum states. An employee was terminated for violating that policy after posting critical comments about her supervisor, including using the term “scumbag.”
The NLRB concluded that policies banning offensive conduct and rude or discourteous behavior “proscribe a broad spectrum of conduct and contain no limiting language” which would clearly exclude conversations that might represent concerted activity and protected speech.
Employers win cases, too. In November 2013, a U.S. District Court for Oregon upheld an employer’s termination of an employee of Oregon’s Department of Human Services in Shepherd v. McGee. Shepherd was a child protective services caseworker who was very fed up with many of the parents she visited. The purpose of her visits was to determine whether a case should be brought against them to gain custody of children.
Shepherd identified her employer on her Facebook page. In one of her Facebook postings, she wrote: “So today I noticed a client [on public assistance] getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on [public assistance].” In another post, she wrote, “almost every client home I go into has a gigantic flat screen TV.” She also commented on her clients’ need for “reliable birth control.”
Her employer, upon learning about these comments, concluded Shepherd’s reputation as a neutral observer was shot, and that the Department could no longer use her as a witness in a case. Her Facebook rants, they said, would be used against the state when it sought to remove a child from its parents’ custody. Shepherd was terminated.
Her legal claim against her employer in fighting the termination was that her First Amendment rights had been violated. However, the Court concluded the interests of the Human Services Department outweighed Shepherd’s First Amendment rights.
Would you be as successful in upholding a termination when an employee rants about your customers online? Several factors could tip the scales one way or the other when there is no clear intent to punish an employee’s concerted activity or protected speech, as in this case. For example, if the employee’s Facebook privacy settings were “high,” the employee could argue the communication was purely personal and you, the employer, had no business paying attention to any of it.
However, if a Facebook friend of the employee were to pass the rants on to you without your instigation, you would have a stronger defense.
In the end, even when you are confident you could win this kind of case, it just might not be worth the trouble and expense to terminate such an employee. Take a deep breath and think realistically about the situation:
- How much damage is really being done?
- How many people are likely to pay any attention to the rants?
- Is it not reasonable to assume the employee is making similar comments in other settings? And:
- How would your reputation as an employer fare if litigation following a termination becomes the talk of the town?
Some social media employee behavior is worthy of termination, come what may. But that assessment should be made dispassionately with a recognition that you may pay a price and discover a judge doesn’t see the situation the same way you do.
Payroll Partners is committed to helping clients stay informed about payroll and human resource news. This article is intended to provide readers with general information on human resources matters. The article does not constitute, and should not be treated as professional advice regarding the use of any particular practice. All efforts have been made to assure the accuracy of the information. Payroll Partners does not assume responsibility for any individual’s reliance upon the information provided in the article. Readers should independently verify all information before applying it to a particular fact situation, and should independently determine the impact of any particular practice. If you are seeking human resources advice, you are encouraged to consult a human resources professional.