In a time of Twitter, Facebook, and Instagram, it is easy for employees to forget that every post shared has the potential to go viral and draw attention not only to the employee but also their employer. It only takes only one post to affect an employer's reputation, and so employers are keen to ensure their employees act appropriately online, especially when it concerns their business. However, what rights do employers possess to do so?
In NLRB v. Pier Sixty, LLC, the U.S. Second Circuit Court of Appeals analyzed whether an employer could sanction an employee who posted profanities on Facebook about his supervisor and the supervisor's family while encouraging coworkers to vote for the union in a representation election. NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2nd Cir. 2017). The post in question stated that the supervisor, identified by name, was a "nasty motherf*****" and used similar language to describe the supervisor's family. The employee knew that other coworkers would see the post but claimed that he did not know it was public on Facebook. After an investigation, the employee was fired, and the employer was investigated for violating the National Labor Relations Act (the "NLRA") because it fired an employee for engaging in protected, concerted activities. The National Labor Relations Board (the "NLRB") found that the employee's Facebook post was protected conduct, and so the employer had violated the law by firing him.
On appeal, the Second Circuit agreed using a multi-factor test looking at whether the comments were provoked or impulsive, whether there was evidence of antiunion activity, and whether the discipline imposed was typical for similar violations, among other factors. The court ultimately deferred to the findings of the NLRB that the comments were not so egregious as to be unprotected, but noted that the case was "at the outer-bounds of protected, union-related comments."
The Second Circuit's warning that the profane Facebook comment fell near the line of protected conduct is of little consolation to an employer found to have violated the law, but employers would do well to take heed that conduct they may find egregious may be legally protected. This issue is not limited to unionized workplaces. See, e.g., The Kroger Co. of Michigan, And Anita Granger, an Individual, 199 L.R.R.M. (BNA) 1319 (N.L.R.B. Div. of Judges 2014) (find that social media policy violated non-union employees' Section 7 rights under the NLRA). While social media policies are crucial to ensuring that confidential or proprietary information of the employer is protected from the public and can also maintain brand or image consistency, employers must carefully craft these policies to avoid having a "chilling effect" on their employees protected speech. To do so, employers should update their policies to ensure that they comply with existing law and should also consult with an attorney to determine whether certain social media posts may be protected.
For example, policies prohibiting the release of "confidential guest, team member or company information" or the discussion of confidential information in the breakroom have been found unlawful because of their potential to keep employees from discussing the terms and conditions of their employment. Employers do not want to rely on their policies to terminate an employee only discover later that the social media policy was unlawful under federal law. It is good for employees to understand that an employee's opinions on social media could be misconstrued as those of the employer, and so employers should review their updated social media policies with their staff.
It is difficult to keep up with the fast pace of legal developments and regulatory guidance in the digital age, especially on social media, but businesses still must have clear and unambiguous social media policies compliant with current laws and regulations. This can be especially difficult for those businesses engaged primarily in online business or online marketing, as encouraging employees to use social media can be a critical tool in business development, and so those businesses must be especially careful to avoid limiting their employees' social media activity related to their employment. As Pier Sixty, L.L.C. discovered this year, it is tempting to sanction employees for what appears to be profane or disloyal conduct, but you may be surprised to find yourself on the wrong side of a "close case." Employers should have updated social media policies in place to govern these cases, and should consult a labor and employment attorney to determine whether a certain post by an employee may be protected before sanctioning that employee.
By:
Associate in the firm's New Orleans office.
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