Can You Fire An Employee for A Facebook “Like”?

Since the arrival of social media sites such as Facebook and Twitter, employers have worried about protecting themselves from disparaging comments by their employees. Meanwhile, the National Labor Relations Board (NLRB) has intensified its scrutiny of employers’ social media policies and whether such policies prohibit employees from discussing the terms and conditions of their employment. The National Labor Relations Act (NLRA) gives employees the right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees,” and social media has become one of the main avenues through which employees do so. An employer who violates this right and disciplines or fires an employee for engaging in protected activity faces big penalties, including having to reinstate the employee.

In a series of rulings over the past few years, the NLRB has taken the position that social media sites are “virtual water coolers,” and whatever employees have a right to discuss around the workplace with respect to the terms and conditions of employment, they may also discuss on social media. In an August 22, 2014 decision, the NLRB decided that “liking” a Facebook post that deals with working conditions is also “protected concerted speech.” Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The NLRB found that Triple Play Sports Bar and Grille violated the NLRA when it terminated two employees for participating in a Facebook discussion about the additional state income taxes they owed because of the employer’s withholding mistakes, including the one who had only “liked” the post.

The NLRB concluded that the Facebook discussion was protected activity because “the purpose of [the] employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation….” The judge found that the employee’s “like” “expressed his support for the others who were sharing their concerns and therefore ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” In balancing the interest of Triple Play’s owners in preventing harmful comments by their employees, the NLRB held that the comments were not “so disloyal” as to lose protection under the NLRA.

The NLRB also reviewed Triple Play’s Internet/Blogging Policy, and found that restricting online communications involving “confidential or proprietary information about the Company, or…inappropriate discussions about the company, management, and/or co-workers” violated the NLRA because it could reasonably include protected discussions. While the NLRB acknowledged that the policy did not “explicitly restrict protected activity,” it was still problematic because employees could reasonably interpret it as “proscribing any discussions about their terms and conditions of employment [that the employer] deemed ‘inappropriate.’”

As this decision makes clear, because a “like” standing alone can be protected, employers should tread carefully when considering taking action against employees for their social media activities and employer social media policies should be narrowly tailored to avoid prohibiting protected discussion. The NLRB will likely continue to scrutinize employer social media policies, and now is the time for employers to assess how to properly limit and respond to employees’ social media use.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com. 

Daughter’s Facebook Post Reveals Father’s Breach of Settlement, Costing Dad $80,000

Confidentiality clauses are typical in settlement, severance, and separation agreements, as employers typically want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment. Employers often offer significant monetary consideration in exchange for, among other things, the employee’s discretion. Recently, a Florida appeals court found that a former school headmaster violated the terms of a confidential age discrimination settlement with the school, after his daughter jokingly mentioned the settlement in a Facebook post saying “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” The settlement required the employee and his wife not to reveal the existence and terms of the settlement agreement to anyone other than their attorneys or professional advisers. As a result of his daughter’s gleeful disclosure, the employee’s payout was reduced by $80,000!

For employers, this case highlights the importance of including confidentiality language in settlement agreements which clearly communicates what conduct is prohibited and who can learn information about the settlement. In addition, if an agreement indicates that others are expressly permitted to learn of the agreement’s terms, such as a spouse or immediate family member, it is prudent to also specify that a breach by any of those individuals will be considered a breach by the employee, and as a result, will subject the employee to the same penalties. Moreover, adding an express reference to social media may be worthwhile. The agreement at issue in the Florida case did not, and it took two courts to finally determine, much to dad’s chagrin, that disclosure on Facebook constituted a breach.

The case also shows a willingness of courts to enforce reasonable confidentiality terms, especially in a situation where the result of the breach is exactly the type of harm the company sought to prevent. When considering what types of penalties to include for a breach, it is important to ensure that the penalty is not oppressive and/or punitive. In this case, the company paid the employee the agreed-upon back pay and attorneys’ fees and sought only to recover the amount provided for punitive damages. However, a court may be less likely to enforce a penalty for a breach that goes well beyond the amount contemplated by the settlement agreement.

Lastly, as this case demonstrates, even inadvertent disclosures, whether online or in some other forum, can prove costly and result in legal and financial liability. Consequently, companies should take proactive steps to prevent such disclosures. For instance, companies should put physical and electronic safeguards in place to protect confidential information, only disclose confidential information to employees with a need to know, and if such information is disclosed, ensure that employees understand their obligations to keep the information confidential.  Following basic rules and common sense can avoid odd conclusions the dad was forced to live with in Florida.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com.

Are Employee’s Social Media Discussions Protected?

As we’ve reported, the National Labor Relations Board (“NLRB”) continues to take an aggressive stance on regulating employment decisions based on employee social media postings. Contrary to the recent trend of broadly construing employee social media postings as covered under protected activity, the NLRB reversed course and recently ruled in favor of an employer after terminating an employee based upon what it believed was an improper Facebook group message post.

In the case, an employee worked at a small medical office performing various office duties for her employer. The employee at issue in the case, along with nine other individuals who were comprised of both former and current employees, took to a private group chat on Facebook to organize a social outing. After briefly planning the social event, the subject quickly changed after the employee mentioned that another former employee may be returning to the company as a supervisor. This led to the employee beginning an attack on her current supervisor claiming that her supervisor "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." The employee’s rant did not stop there as she began using profanity and stated “FIRE ME …Make my day.” Other than one other current employee stating that the employee’s comments made her laugh, no other current employees took part in this part of the discussion.

To no surprise, one of the current employees on the group chat showed this discussion to their employer. The employer called the disgruntled employee’s bluff and ended up firing her as it was clear to the employer that she was no longer interested in working for the company.  The terminated employee responded by filing an NLRA charge against the company claiming that her Facebook comments constituted protected concerted activity.

The NLRB found that the employee’s conduct on the Facebook group message did not constitute protected activity as the postings did not involve shared employee concerns over terms and conditions ofemployment. The NLRB largely focused on the test for “concert” and whether the employee is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Ultimately, the NLRB concluded that the terminated employee’s “comments merely expressed an individual gripe rather than any shared concerns about working conditions,” and therefore, the terminated employee’s charge should be dropped.

This is a big victory for employers as up until this opinion, the NLRB has continuously taken a very aggressive stance against employers on social media policies and terminations based on violations thereof. When making these termination decisions related to online postings, employers will want to consider what was said, by whom, and who responded in order to determine whether such conduct would be considered “protected concerted activity.” Though this opinion does give employers comfort if and when it decides to make a termination decision based on improper Facebook postings, it is always critical for you first to discuss these decisions with an experienced employment attorney.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Nick can be reached at NJohnson@BerenzweigLaw.com.

Government Continues to Scrutinize Workplace Social Media Policies

Concerned about its image and the protection of its employees, retail giant Costco enacted a policy restricting employees from making statements on social media sites such as Facebook or Twitter that:

“. . . damage the company, defame any individuals or damage any person’s reputation.”  

The Federal Government caught wind of Costco’s social media policy, and brought an action to stop it on the ground that the policy interfered with the right of Costco employees to band together to improve workplace conditions.  Costco defended the policy by saying it was merely trying to protect the company and its employees from online harassment and disparagement.

The National Labor Relations Board (NLRB) recently ruled that Costco’s policy violated the right of all employees (even non-union employees) to improve workplace conditions.  This is a tough decision for many companies to swallow, since on the surface it appears that Costco’s social media policy was aimed at the type of conduct that would be labeled defamation or disparagement.  But it is actually consistent with many other recent decisions from the NLRB clamping down on any company provisions that it feels could have a chilling effect on the ability of employees to protest against work conditions.

Traditionally, the NLRB has been associated with union workplaces.  But with the decline of union membership nationwide, the NLRB has become more and more active in enforcement actions related to non-union employers.  Social media policies such as the Costco policy at issue in this case have become a prime target of the NLRB’s enforcement arm.  Companies that have not had their employee handbook reviewed in a few years would be wise to undergo a qualified legal review.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Social Media Policies Under Scrutiny by the Government

Social media is everywhere.  Most people are interacting through social media outlets such as Facebook, Twitter and LinkedIn.  The ability to interact with friends, family and colleagues in real-time is unprecedented in modern day society.  However, given the transparent nature of social media outlets, privacy issues can be problematic, especially in the employment context.

Recently, the National Labor Relations Board (“NLRB”) has taken an aggressive stance on analyzing employee social media policies and has issued multiple reports over the last year guiding employers in drafting them.  The NLRB’s main focus is whether the policies hinder or violate an employee’s right to engage in protected concerted activity, such as discussing the terms and conditions of employment. Given the uptick in social media, most policies receive scrutiny when an employee is terminated based on discussions or comments posted on a social media site.

Important take-aways regarding recent NLRB opinions:

• Employers are allowed to prohibit employees from sharing confidential and/or proprietary information online.  It is Best Practice to give examples of what is considered confidential and/or proprietary information.
• Employers are allowed to prohibit employees from posting vulgar or obscene language, as well as intimidating or harassing material. 
• A simple disclaimer such as “nothing herein prohibits protected conduct under Section 7 of the NLRB” will not, by itself, save an overly broad social media policy. However, it is Best Practice to include it, thus ensuring that the remaining social media policy is not overly broad. 
• Policies cautioning employees about posting inaccurate, misleading or internal company information have been determined to be overly broad.
• Policies stating that employees are prohibited from disparaging or defaming the company through social media have consistently been struck down, thus employers should avoid such language. 

There is a clear trend from the NLRB to strike down social media policies that are overly broad or determined to be restrictive.  As an ever-evolving area of the law, social media policies that may have been acceptable a few years ago may no longer be considered lawful. Employers should be mindful of this and understand that drafting employee handbooks and policies is not a one-time event, but rather a continuing and evolving process.

Nick Johnson, is an Associate Attorney for Washington, DC business law firm, Berenzweig Leonard, LLP. Email Nick Johnson

Facebook and employee grievances

A salesperson for a BMW dealership posted mocking comments and pictures on his Facebook page about the food the dealership served at a promotional “Ultimate Driving Event” held to introduce clients to the new BMW Series 5.  The salesperson was disappointed that his dealership chose to serve hot dogs, bags of Doritos, cookies, and mini water bottles purchased from the local Sam’s Club at an event where the dealership should have been trying to impress its clients.  The Facebook postings complained that the choice in food was not befitting an event centered on a luxury car product, a viewpoint that the salesperson discussed with his colleagues before he posted them.  The negative Facebook postings were accompanied by photos of the salesperson and his colleagues posing in mocking fashion with various food items at the event.

The BMW dealership eventually discovered the Facebook postings, and fired the salesperson for demeaning the company.  The salesperson challenged the legality of his termination, claiming that his Facebook postings were protected activity since he was venting about workplaces issues.

Who won this issue?
The salesperson did.  A judge in New York found that the Facebook postings were protected under Section 7 of the National Labor Relations Act (NLRA), since the cheap food selection could have resulted in less car sales and therefore reduced commissions for the salesperson and his colleagues.  The judge noted that of the salesperson’s 95 “friends” on Facebook, 16 of them were co-workers at the dealership.  Therefore, the postings could be seen as facilitating a discussion among employees of the dealership about workplace issues.

Legal issues such as this involving social media in the workplace are becoming more prevalent every day.  Section 7 of the NLRA applies to all employees and workplaces, not just unionized ones, and prohibits any conduct by an employer that restricts an employee’s ability to commiserate with other employees about workplace issues such as compensation.  Not too long ago, the main concern here would have been employees griping around the water cooler.  But with the advent of social media such as Facebook and Twitter, employees are using online postings to air their employment grievances, creating a major legal dilemma for employers who attempt a heavy-handed approach in response.  Companies need to take great care and work with experienced employment counsel in crafting an effective social media policy.