If you are confused about the leeway you have – should you want to take action against an employee for publishing derogatory postings about your company or personnel, the National Labor Relations Board has been giving some guidance in a series of opinion letters.
Your Rights vs. the Employee’s Rights
In three recent advice memoranda, the board sided with employers who had taken action against staff for making derogatory comments about their employers on their personal Facebook pages. The opinions offer guidance of what the NLRB considers grounds for termination under its labor protection and unionization policies.
Counselor is amused at patients
Martin House is a non-profit residential facility for homeless people, many of whom suffer from mental illness and substance abuse. While at work during one of her shifts, a Martin House employee engaged in some banter on her Facebook page with two of her Facebook “friends,” in which she disparaged some of the patients in the facility. At one point she wrote: “My dear client ms 1 is cracking up at my post, I don’t know if shes (sic) laughing at me, with me or at her voices.”
The employee was not Facebook “friends” with any of her coworkers, however a former client of the facility was and she saw the post and reported her concerns to Martin House management. Upon seeing the posts, the employee was handed her letter of termination.
Among the reasons the employer cited in the letter for her termination was that it was not “recovery oriented” to use the clients’ illnesses for her personal amusement. The letter also cited confidentiality concerns raised by her disclosing information about clients to others.
The employee filed a complaint with the NLRB, which subsequently came down on the side of the employer, writing: “the employee was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns.”
The sullen bartender
In the next case, a bartender disgruntled about his employer’s tip-sharing policy raised his concerns with another bartender, who agreed it “sucked.” The employee later griped about the polics on his Facebook page and also posted a comment that the restaurant’s customers were “rednecks” and stated that he hoped they choked on glass.
After he made the posting, none of JT’s Porch Saloon & Eatery, Ltd.’s other employees commented on it, and he never discussed it with any of them. He was subsequently fired mainly for his “redneck” comment.
In denying the employee’s complaint, the NLRB said there was no evidence of concerted activity. It said the employee had not discussed the tip-sharing policy with any other employees and there had been no effort made to organize a meeting to discuss it with other employees.
Therefore, the employer was within its rights under the National Labor Relations Act to fire the bartender.
The blue-light poster
A Wal-Mart Stores Inc. employee had an interaction with a store assistant manager and later wrote on his Facebook page: “I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” Two co-workers responded with
innocuous comments, but not about the alleged tyranny. The employee went on to say that he would complain to the store manager about the assistant manager, and that if things did
not change the company could “kiss my royal white a** (expletive removed).”
Another coworker saw his post, made a printout and showed it to store management, who imposed a one-day suspension that precluded promotion. The employee removed the post the following day, but filed a complaint with the NLRB.
The NLRB found no evidence of concerted activity and concluded that the employee’s postings were an “individual gripe” rather than an attempt to engage his co-workers in group action.
Recently, the NLRB’s Office of the General Counsel released a report on 14 social media cases it had investigated within the past year. The report shows that employees don’t enjoy unlimited protection in their use of social media, and that you can discipline employees
for inappropriate use of such media. You can find the report at: www.nlrb.gov. You should also craft a social media policy that fits your needs.
Make sure to do so in consultation with your attorney, and before taking disciplinary steps against an employee over social media postings.
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