The Consequences of Social Media: Is Your Policy Lawful?

For the National Labor Relations Board (NLRB), the ubiquity of social media presents some unique challenges. While the legal standard for protected activity hasn’t changed, the context often gives employees an unpleasant surprise when they realize that the things they say on social media have the same consequences as what they say in person. Online comments have real life impact, as illustrated in a recent case covered by the National Law Review.

In Butler Medical Transport, LLC, 365 NLRB No. 117, the NLRB reviewed the terminations of two employees for comments made on Facebook. The employer, an ambulance transportation company, had a social media policy that included this statement: “I will refrain from using social media sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.”

Employee #1

A terminated employee complained on Facebook that her termination was unfair because the employer sided with a patient in a dispute. Several employees commented, including Employee #1, named in the NLRB case, who posted, “Sorry to hear that, but if you want you may think about getting a lawyer and taking them to court,” and a follow up post, “you should contact the labor board, too.” An anonymous employee took a screenshot and left it on the Human Resources manager’s desk. As a result, Employee #1 was fired for violating the social media policy and filed charged against the company.

Employee #2

A different employee, Employee #2, posted an expletive-laced, all-caps complaint about being broken down again “BECAUSE THEY DON’T WANTA BUY NEW S—!!! CHA_CHINNNGGGGG…” Again, an anonymous source delivered a screenshot of the post to Human Resources. Employee #2 was terminated for violation of the social media policy and he, too, filed charges with the NLRB.

Two Different Findings

For Employee #1, the Board found the termination unlawful, stating that the employee’s conversation regarding her termination was protected, since it contained advice about “potential avenues of redress” — protected activity under Section 8 of the NLRA. Further, the Facebook conversation, according to the Board, pertained to a potential concern of all employees with an interest in job security and protection against dismissal. As such, termination for the discussion was unlawful.

In the case of Employee #2, the Board found the conduct to be unprotected. In his unemployment hearing, the employee revealed that he was referring to his girlfriend’s car in the Facebook post, not an ambulance. Since the mechanical breakdown was unrelated to his employer and of no concern to other employees, the activity was not protected. The employer also presented service records for the ambulance driven by Employee #2, showing that the vehicle had no repair problems, despite the implication of the Facebook post. The Board found the comments to be “maliciously false” and upheld the termination.

Overbroad Social Media Policy

Although the judge did not consider the employer’s social media policy, the NLRB noted that it was “unlawfully overbroad.” To meet NLRB standards, a social media policy must carve out prohibitions on protected activity under the NLRA, such as discussions among employees regarding work conditions or, as in this case, potential avenues of redress.

As we often remind employers, all written policies must be carefully reviewed for lawfulness under the NLRA. (In the policy mentioned above, proofreading would have been a nice touch, as well.) Because Board standards can change to reflect the policies of a new leadership, employers should audit their policies regularly to reflect the latest Board guidance—or stay in close touch with their labor and employment lawyers, who can inform them of significant shifts. As always, we’re available to help.

 

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