Facebook comments about condition of company vehicles are protected under the NLRA; a Facebook rant about fake problems with the company car, not so much – Butler Medical Transport, LLC, 2013 WL 4761153 (N.L.R.B. Div. of Judges)
A recent decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) gives employers insight on when they can and cannot fire an employee for their social media conduct outside of work. Particularly interesting is the fact that this decision involved two separate terminations, one of which the ALJ found illegal, and the other not.
The Norvell Termination
William Norvell worked as an emergency medical technician for an ambulance company, Butler Medical Transport (Butler). While on his personal computer at home, Norvell read a post by a co-worker (Zalewski) on her Facebook page stating that she had been fired. Zalewski attributed the firing to a patient report to management that she complained about the condition of Butler’s ambulances. Several people, including another Butler employee, posted comments inquiring into the incident, to which Zalewski responded with more posts about the patient’s report. Norvell responded to Zalewski with this comment:
“Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
Another person posted a comment suggesting that Zalewski find a job with another ambulance company. After Zalewski asked where the company was located, Norvell posted the location and added, “You could contact the labor board too.”
Butler’s HR director obtained hard copies of these posts, and in consultation with the COO, decided to terminate Norvell. The HR director told Norvell that he was being terminated for violating Butler’s bullet point list of work rules, one of which prohibited employees from using social networking sites that could discredit Butler or damage its image.
The ALJ determined that Norvell’s Facebook posts were protected concerted activity. By advising Zalewski to see a lawyer or contact the labor board, Norvell was “making common cause” with a co-worker about a matter of mutual concern to the employees, i.e., the condition of Butler’s ambulances. Norvell’s posts had protected status even though they were accessible to people outside of the company because Section 7 of the National Labor Relations Act (NLRA) extends to employee efforts to improve the terms and conditions of employment through channels outside of the employer-employee relationship. The ALJ did not find posts to be so disloyal, reckless, or maliciously untrue as to lose their protected status. The termination of Norvell based on his Facebook posts therefore violated Section 8(a)(1) of the NLRA.
The Rice Termination
Another Butler employee, Michael Rice, posted this comment on Facebook:
“Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna buy new shit!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store,”
Butler terminated Rice for making this post. At the trial hearing before the ALJ, Butler produced maintenance records showing that Rice’s vehicle was not in disrepair when he made the post. Rice had also testified at his unemployment insurance hearing that his post referred to a private vehicle rather than a Butler ambulance. There being no evidence to the contrary, the ALJ determined that Rice’s post was not protected by Section 7 because it was maliciously untrue and made with the knowledge of its falsity. As a result, Rice’s termination was not illegal.
Legality of Work Rules
Also under scrutiny was the legality of two of Butler’s work rules, one prohibiting the “unauthorized posting or distribution of papers,” and the other requiring employees to acknowledge that they “will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image.” Butler argued that the rules were not official company policy because they were stated in a bullet point list. The ALJ rejected the argument as making a distinction without a difference. Butler relied on the bullet point rules in terminating Norvell and Zalewski, and new employees were required to acknowledge receipt of the list. As such, employees could reasonably understand that they would be disciplined for failing to follow the rules on the list. The ALJ found that the rules violated Section 7 activity because they prohibited employees from communicating to others about their work conditions.
LegalTXTS Lesson: This case doesn’t break new ground, but it does contain a few important reminders for employers grappling with how far they can go in regulating the social media activity of employees.
1. A policy by any other name … is still a policy. Butler’s failure to convince the ALJ that the bullet point list was not company policy should serve as a reminder that if a company communicates a rule to its employees in writing, expects them to follow the rule, and disciplines them if they don’t, the rule is effectively a policy. It doesn’t matter that the rule appears in a document whose title doesn’t include the word “policy,” or that the wording of the rule is informal.
2. Write it right. Given how easily a supposedly informal rule could qualify as a policy, a company should take care in articulating its work rules in the form of an official written policy. Consult with counsel to make sure the wording doesn’t inadvertently violate the law.
3. Don’t go overboard. The NLRB has consistently frowned upon work rules that flat out prohibit employees from posting content on social media that damages the reputation of their employer, or worse yet, bars them completely from speaking to others about work-related issues, whether on social networking sites or other media. (For examples, see the related posts below). Reject categorical bans on employee speech in favor of rules that focus on creating or avoiding specific results.
4. Context matters. Before disciplining an employee for a social media post, understand the context in which the post was made. Is the post about a work-related issue that other employees have discussed before? Does the post call for co-workers to take action? Asking such questions helps management determine if the post is protected under the NLRA.
NLRB dishes out confusion on social media policies
NLRB sanctions employees who fire employees for online “protected concerted activity”
DirectTV’s work rules invalidated by NLRB
A New York court overturns the termination of a public school teacher for posting offensive comments on social media – Rubino v. City of New York, 106 A.D.3d 439 (May 7, 2013)
The New York Supreme Court, Appellate Division recently ruled that the firing of a fifth-grade public school teacher for making inappropriate comments on social media was too harsh of a penalty. After a difficult day at class, the teacher posted comments alluding to a tragedy involving an unknown student at a different school. The court’s opinion is sparse on details, but according to a Huffington Post article, the teacher wrote: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!” The beach reference alluded to the drowning of a 12-year old girl on a school trip to Long Island beach the day before. The comments were only visible to the teacher’s private network of friends, who did not include any of her students or their parents. The teacher deleted the comments three days after posting them. She denied making the comments when she was initially confronted about them, but later confessed at her disciplinary hearing.
The court agreed that the comments were “clearly inappropriate” but it noted that the purpose of the comments was just to vent. The teacher did not intend the public to see her comments, and she expressed remorse over making them. She had no prior disciplinary history in her 15-year career. Given the record, the appellate court found the termination to be “shocking to one’s sense of fairness.” The appellate court upheld a lower court order setting aside the termination and sending the case back down for imposition of a lesser penalty.
LegalTXTS Lesson: Not all courts have been as kind toward teachers who vent on social media as the New York Appellate Division. In fact, in In re O’Brien, a court in neighboring New Jersey upheld the firing of a first-grade teacher under similar circumstances earlier this year. One difference might be that the teacher in Rubino expressed remorse for making the comments whereas the teacher in O’Brien did not. Whether that factor alone accounts for the different outcomes is questionable. One thing the cases do share in common is that the teachers in both thought that no one outside of their network of “friends” would see their comments. With apologies to Las Vegas, Rubino and O’Brien teach that what happens in an employee’s social network doesn’t always stay in his or her social network.
Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.” An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment. Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity. Three recent National Labor Relations Board (NLRB) decisions highlight this risk.
In Hispanics United of Buffalo, Inc., 359 NRLB No. 37 (Dec. 14, 2012), an employee at a domestic violence relief organization posted on Facebook about a co-worker (Cruz-Moore) who threatened to complain about the work habits of other employees to the executive director of the organization. The employee wrote: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . . I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post with disagreement over Cruz-Moore’s alleged criticisms. Cruz-Moore saw these posts, responded to them, and brought them to the attention of the executive director. The employee who authored the original post and the employees who responded were fired. Two NLRB members of a three-person panel found the termination to be a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB found the posts to be “concerted” because they had the “clear ‘mutual aid’ objective for preparing coworkers for a group defense to [Cruz-Moore’s] complaints.” The NLRB also considered the posts “protected” because they related to job performance matters.
In Pier Sixty, LLC, 2013 WL 1702462 (NLRB Div. of Judges Apr. 18, 2013), the service staff of a catering company were in the process of taking a vote on union representation when a staff member (Perez) got upset by what he perceived as harassment by his manager. During a break, Perez went to the bathroom and posted on Facebook: “Bob is such a NASTY M***** F****R don’t know how to talk to people!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION.” Various co-workers responded to the post. The company fired Perez after learning about the post. An administrative law judge of the NLRB held that the employer violated Section 8(a)(1) of the NLRA. The judge found the post to constitute “protected activity” because it was part of an ongoing sequence of events involving employee attempts to protest and remedy what they saw as rude and demeaning treatment by their managers. The post was also “concerted” because it was activity undertaken on behalf of a union.
In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013), employees of a clothing store repeatedly but unsuccessfully attempted to persuade their employer to close the store earlier so that they wouldn’t have to walk through an unsafe neighborhood at night. The employees posted Facebook messages lamenting the denial of their request and criticizing their manager. In one message, an employee said she would bring in a book on workers’ rights to shed light on their employer’s labor law violations. Another employee saw the messages and sent them to the HR director, who in turn forwarded them to the store owner. The owner fired the employees who posted the messages, allegedly for insubordination. A NLRB administrative law judge found the terminations unlawful because the messages were a continuation of an effort to address concerns about work safety (i.e., leaving work late at night in an unsafe neighborhood) and thus constituted protected concerted activity.
LegalTXTS Lesson: What should employers learn from these decisions? To avoid violating Section 8(a)(1) of the NLRA, employers might consider the following before disciplining employees based on their social media activity:
- Check whether the employee’s post attracted or solicited a response from co-workers. The interactive nature of social networking means that communications via social media are often “concerted.”
- Calls for co-workers to take action likely constitute “protected” activity.
- Complaints about work or co-workers—even if vulgar—can be considered “protected” activity.
- Messages posted outside of the workplace or work hours can still be considered protected concerted activity.
- Be especially sensitive to messages that reference collective bargaining activity or labor requirements. Those are red flags indicating the need to exercise caution.
- Often, social media is not the initial venue for airing work-related complaints. Investigate whether the complaints voiced online were previously brought to the attention of the employer. If they were, the online messages are more likely to be found to be part of a series of protected activity.
Check out the article on Internet firings posted on HR Hero’s “Technology for HR” blog. The article talks about the firing of the Applebee’s waitress who snapped a picture of a receipt on which the customer, a pastor, wrote: “I give God 10% Why do you get 18?” and posted it on Reddit. I was happy to provide commentary for the article on Applebee’s social media policy and suggest tips for employers dealing with embarrassing Internet activity of employees like the Applebee’s incident.
Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), is the latest reminder that private Facebook postings can lead to professional consequences. Sutton was hired as a Funeral Science Director at Arkansas State University–Mountain Home for the 2010-11 academic year. His employment contract provided that he could be terminated at any time “for adequate cause.” A month after Sutton got hired (but apparently before he began teaching), he posted on his Facebook page: “Toby Sutton hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!”
University officials somehow learned about the post and asked to meet with Sutton about it. At the meeting, the university’s vice-chancellor (Bailey) and director of instruction (Thomas) confronted Sutton with the post. He admitted to making the post. Bailey then told Sutton that he was fired. Sutton asked if it mattered that the statement was a joke, and that he posted the statement before he began teaching. Baily replied “no” to both questions. Sutton then received an Employee Counseling Statement form stating that he was being dismissed for an incident of “Academic Fraud and unprofessional conduct.” The “Supervisor Statement” portion of the form explained: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school. There are multiple other class related issues.” Bailey told Sutton he had an opportunity to make a statement before signing the form. Sutton declined and signed the form without further comment. Sutton later sued Bailey and Thomas in their individual capacities, alleging that he was deprived of procedural due process in connection with his firing.
The bulk of the Eighth Circuit Court of Appeals’ opinion addressed the defendants’ defense of qualified immunity, which the court found to have merit.
LegalTXT Lesson: This case has two important, if obvious, takeaways. First, employees need to remember that whatever content they share on their private social media networks could come back to haunt them professionally. Employees need to be reminded constantly that social media blurs the line between personal and public, private and professional.
Second, Sutton answers a question I often get asked by employers: Can employees be disciplined or even terminated for their private social media conduct? The answer is yes. (For another example, read my post on the Careflite case, which recently settled). There are limits, of course (and the NLRB Acting General Counsel has waxed long about many of them), but there are circumstances in which it is proper to discipline or terminate an employee for his or her private social media activity. Now, it would help greatly if an employer sets standards of employee conduct clearly identifying the kinds of social media conduct that could lead to adverse employment action. We don’t know what was in the employee handbook of the university in this case, but a rule that could’ve come in handy is one instructing faculty members not to endorse or make light of academic dishonesty.