United States: Two Employees, Social Media, An Unlawful Policy. . .What Could Possibly Go Wrong?

The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was surprising only because some people seemed to not realize that what is said online is just as good, or bad, as something you say in person. It appears many people still do not realize that what they write online can have real consequences. Those consequences were the subject of a recent NLRB case.

In Butler Medical Transport, LLC, 365 NLRB No. 117 (July 27, 2017) the NLRB evaluated two separate terminations of employees for comments made on Facebook. The employer provided ambulance transportation services and its employees consisted of emergency medical technicians who drove ambulances.

The Social Media Policy

The employer maintained a social media policy which stated, in part, "I will refrain from using social media sights [sic] which could discredit Butler Medical Transport or damages [sic] its image." It is undisputed that this policy is overbroad and therefore unlawful under the NLRA.

Employee 1 – "You could go to the labor board too"

An employee who had been terminated by the employer posted remarks on Facebook about her termination. The employee essentially complained that the circumstances of her termination were unfair because the employer had sided with a patient in a dispute. A few employees commented. Employee 1 posted the following comment: "Sorry to hear that but if you want you may think about getting a lawyer and taking them to court." Employee 1 followed up with the remark, "[Y]ou could contact the labor board too."

An anonymous employee took a screenshot to this exchange and placed it on the Human Resource Manager's desk. Employee 1 was terminated for violating the social media policy. He filed charges.

Employee 2 – "Hey everybody!!!!!

Employee 2 posted the following message on Facebook: "Hey everybody!!!!! IM (sic) F*&KIN BROKE DOWN IN THE SAME SHIT I WAS BROKE IN LAST WEEK BECAUSE THEY DON'T WANTA BUY NEW SH#T!!!! CHA CHINNNGGGGGG–at Sheetz Convenience Store."

As with Employee 1's case, an anonymous source pushed a screenshot of this post underneath the Human Resource Manager's door. Employee 2 was terminated for violation of the social media policy. He too filed charges with the NLRB.

The Board Decides Employee 1's Termination Was Unlawful And Employee 2's Termination Was Lawful

The Board found that Employee 1's termination was unlawful in violation of Section 8(a)(1). The Board found that Employee 1's conduct was concerted activity because he "was engaged in a conversation with fellow employee's regarding" the termination of an EMT and Employee 1 "advised [the terminated employee] about potential avenues of redress." The Board cited authority holding that giving such advice has been deemed to constitute protected activity.

The Board also found the purpose of Employee 1's action satisfied the requirement that it be for "mutual aid and protection" because he "posted his comments as part of an online conversation with fellow employees, triggered by one employee's complaint about what she believed was her unjust discharge–a potential concern for all employees, who have a common interest in job security and protection against such a dismissal." The Board found the termination for engaging in this activity a violation of Section 8(a)(1).

The Board addressed the alternate theory not addressed by the Administrative Law Judge that Employee 1's discharge was unlawful because he was terminated pursuant to an overbroad policy. As we have discussed many times, including here, it is a rare case where an employee is actually terminated or disciplined pursuant to an unlawful policy. The Board applied Continental Group, Inc., 357 NLRB 409 (2011) which holds that an unlawfully overbroad rule may violate Section 8(a)(1) in two situations: if the employee was disciplined for engaging either in protected activity or, for conduct that is not concerted, but "touches the concerns animating Section 7." The Board noted the employer can avoid liability by demonstrating that the employee's conduct actually interfered with the employer's operations and "that the interference, rather than the overbroad rule, was the reason for the discipline." The Board found that under either prong Employee 1's discharge would be unlawful and that there was no evidence his activity interfered with operations.

The Board found Employee 2's conduct was not protected. Employee 2 did not testify for the General Counsel. The employer subpoenaed him to testify and he refused citing his "fifth amendment rights" so the Judge and the Board did not have the benefit of hearing from Employee 2. The evidence did disclose that Employee 2 explained the meaning of his Facebook post during his unemployment hearing and said he was driving his girlfriend's car, not an ambulance. If this was true, then the Board found the comment to be not protected at all because the mechanical efficiency of a girlfriend's car is not a concern to other employees. The employer also introduced service records showing that the ambulance driven by Employee 2 had never had repair problems. If Employee 2 was driving an ambulance the day he posted his comments about it breaking down, the Board found this to be "maliciously false" and therefore not protected. We have discussed this past standard recently in a case where a court of appeals criticized it as too exacting.

The Board also applied Continental Group to conclude that Employee 2's termination was not unlawful under the overbroad policy because it was neither protected nor did it touch upon Section 7 activity.

Dissent Would Find Both Terminations Lawful

Chariman Miscimarra concurred in part (he agreed that Employee 2's termination was lawful) but largely dissented arguing that the majority's analysis of both Employee 1's conduct and the application of Continental Group was in error. The entire decision in this case, including Board, dissent and Administrative Law Judge's opinion is 29 pages. Chairman Miscimarra's dissent weighs in at a healthy 15 pages and contains a good recitation of the law concerning protected concerted activity and the analysis of discipline taken pursuant to an unlawful policy. To sum it up, the Chairman believed the analysis under Continental Group is contrary to the Act in that it was possible that an employee who was discharged for cause could be reinstated in violation of Section 10(c) of the Act which prohibits the Board from reinstating or paying backpay to an employee whose conduct otherwise constituted good cause.

Takeaways

This case is yet another reminder for employers to have all written policies reviewed for lawfulness under the Act. Reviewing a policy for correct grammar and spelling also would not hurt. It is almost certain the Board will change the standard in the coming months but scrutiny of policies will continue in some form.

The case also presents two fact patterns side by side which demonstrate good cause and bad cause to terminate an employee. While there certainly is room to argue over whether Employee 1 was really acting in a concerted fashion when he offered unsolicited advice to the terminated employee to take her case to the "labor board," such a conversation, even conducted virtually, must be seen as a high risk termination. Employees have these kinds of conversations all the time. When the conversation actually references the "labor board" it is hard to imagine the agency not taking issue with a termination suggesting that a case be brought to it.

The case also is another reminder to all who use social media: we are all one step away from having a screenshot of our internet musings shoved under the door of Human Resources.

Two Employees, Social Media, An Unlawful Policy. . .What Could Possibly Go Wrong?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions