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Social media seems to be a favorite forum for employees to complain about their workplace.  Firing employees for posting work-related social media messages can land an employer in trouble.  But is management absolutely forbidden from firing employees for making offensive comments on social media?  Is there a line employees may not cross?  The Second Circuit Court of Appeals took up this question recently in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017).

The Facebook Firing

In early 2011, New York catering company Pier Sixty was in the middle of a tense organizing campaign that included management threatening employees who might participate in union activities.  Two days before the unionization vote, Hernan Perez was working as a server at a Pier Sixty Venue.  His supervisor, Robert McSweeney, gave him directions in a harsh tone.  On his next work break, Perez posted this message on his Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people! ! ! ! ! ! Fuck his mother and his entire fucking family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

Perez knew that his Facebook friends, including ten coworkers, could see the post, although he allegedly thought his Facebook page was private.  Perez removed the post three days later, but not before it came to management’s attention.  Perez was fired after an investigation.

The National Labor Relations Board (NLRB) decided that Pier Sixty unlawfully terminated Perez in retaliation for “protected, concerted activities.”  Pier Sixty appealed to the Second Circuit and the NLRB filed an application for enforcement of its decision.

Evolving Standards of Whether Obscene Comments Lose Protection

Employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA).  But if an employee’s actions lose NLRA protection if they are “so opprobrious and egregious as to render him or her ‘unfit for further service.’”  See Atlantic Steel Co., 245 NLRB 814 (1979).  Pier Sixty argued that Perez engaged in “opprobrious” conduct by posting obscenities on Facebook.

The Second Circuit noted that the test for opprobrious conduct was unsettled.  The NLRB traditionally used the Atlantic Steel four-factor test that considers the location and subject matter of the discussion, the nature of the employee’s outburst, and if the outburst was provoked by an employer’s unfair labor practice.  But in 2012, the NLRB began using a “totality of the circumstances” test in social media cases to address the unique context of social media and allay concerns that the Atlantic Steel test did not adequately consider employers’ interests.

Second Circuit Sidesteps Review of NLRB’s New Test

Without addressing the validity of the “totality of the circumstances” test, the Second Circuit found “substantial evidence” that Perez’s comments were not so egregious as to lose NLRA protection.  Perez’s message, though vulgar, included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before the representation election.”  Pier Sixty also did not previously discipline employees for widespread profanity in the workplace.  Finally, Perez’s comments were not made in the immediate presence of customers and did not disrupt the catering event.  Despite deciding that Perez’s conduct was not “opprobrious,” the court noted that the case sat “at the outer-bounds of protected, union-related comments” and reminded the NLRB to develop a test giving weight to employers’ legitimate disciplinary interests in preventing employee outbursts in the presence of customers.

Takeaways

Pier Sixty teaches that an employee may not be fired simply for making profanity-laced comments on social media if the comments are related to the workplace.  The fact that the comments are accessible to members of the public, including customers, is not determinative.  So at what point do an employees’ obscene comments lose protection?  That remains an open question after Pier Sixty, but the court’s comments inspire hope that the NLRB will craft a more employer-friendly standard in the future.

 

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You’ve adopted a social media policy after hearing all the warnings about employees behaving badly on social media. But do you enforce the policy consistently? Failure to do so can be risky business, as illustrated by a recent federal court decision, Redford v. KTBS, LLC, 2015 WL 5708218 (W.D. La. Sept. 28, 2015). The court in Redford allowed an employment discrimination claim to continue because of management’s uneven enforcement of its social media policy.

The social media policy of KTBS, a Louisiana TV station, instructs employees not to respond to viewer complaints on social media. Chris Redford, an on-air crime reporter for KTBS and a white male, posted a negative comment on his Facebook page in response to a viewer’s comment on a KTBS story. Redford was fired for violating the KTBS social media policy.

Redford sued KTBS for race and sex-based employment discrimination. Redford pointed to KTBS’ treatment of two other employees for their social media conduct. Lee, an on-air personality and an African-American female, responded multiple times to negative viewer comments on the official KTBS Facebook page. She received numerous warnings from management before being fired on the same day as Redford. Sarah Machi, an on-air personality and a white female, responded negatively to a KTBS viewer’s comment on her personal Facebook page, but received no warning or discipline. Based on this evidence, Redford argued that KTBS fired him not for violating the social media policy, but to prevent a potential lawsuit by Lee for race or sex discrimination. According to the court, Redford had a viable claim that he was treated less favorably than Lee and Machi because of his race or sex.

KTBS argued that it took no action against Machi because she posted her comments on her personal Facebook page, which was set to “private” so that only her Facebook friends could access it. Redford’s Facebook page did not have privacy filters turned on, and he often used his page to promote his work at KTBS. Since KTBS apparently considered comments posted on an employee’s “private” Facebook page to be outside the scope of its social media policy, the court reasoned that KTBS’ stated reason for firing Redford could be pretextual if Redford’s Facebook page was considered “private.” This issue had to be resolved at trial, so the court denied summary judgment to KTBS on the pretext issue.

Redford is a good reminder of the importance of consistent enforcement of social media policies. Even-handed enforcement is made easier by clearly spelling out the scope of the policy. If the policy makes a distinction between “company” and “personal” pages, for example, describe the specifically and consider providing examples. Ambiguity and inconsistency are your worst enemies when it comes to enforcing a social media policy.

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“It’s my First Amendment right to say what I want!”  The First Amendment is commonly invoked to justify personal expression.  But did you know that the First Amendment applies only when the government is involved?  For example, the First Amendment wouldn’t prevent a private company from firing an employee for making offensive comments about the governor.  If the same employee worked for a government office, then the First Amendment might apply.  As a lawsuit recently filed against the County of Maui illustrates, the First Amendment adds a layer of complexity for public employers dealing with controversial social media activity of its employees.

The First Amendment Lawsuit Against Maui County

Neldon Mamuad is a volunteer Liquor Commissioner for Maui County and part-time aide to a Maui County Council member.  In July 2013, Mamuad started a Facebook fan page called “TAGUMAWatch,” named after a Maui police officer well-known for strict enforcement of parking and traffic violations.  The page was intended to enable Facebook users to post about “Taguma sightings” and share their thoughts about him.  TAGUMAWatch gained popularity quickly and evolved into a discussion forum on a variety of topics including news, traffic, and politics.

Mamuad claims that he didn’t publicize his involvement with TAGUMAWatch until a TV news story about the page named him as its creator.   Mamuad also didn’t identify himself as a County employee when posting to the page or suggest that he spoke for the County.

The County somehow linked Mamuad to the page.  Allegedly under pressure from the County, Mamuad changed the page’s name to MAUIWatch.  A few days later, Officer Taguma submitted a complaint to the County alleging harassment via the page.  After notifying Mamuad of the complaint and conducting an investigation, the County determined that Mamuad had engaged in harassment and cyber-bullying through social media and required him to enroll in an employee counseling program.

On March 3, 2014, Mamuad sued the County in federal court for violating his First Amendment rights.  As of the time of this post, Mamuad’s motion for a TRO was pending.

When Does Employee Discipline Violate the First Amendment?

Most forms of internet expression qualify as “speech” under the First Amendment.  That point has been driven home by recent legal developments,  including a court decision that Facebook “likes” are protected by the First Amendment, a Ninth Circuit opinion recognizing that bloggers have the same First Amendment protections as traditional journalists, dismissal of an appeal from the termination of a public school teacher, and a federal lawsuit filed by a gun rights group alleging that the Honolulu Police Department censored comments on its Facebook page.  Whenever the government is the one restricting speech, the First Amendment becomes relevant.

So how does a public employer know when it may discipline an employee for his or her social media conduct without violating the First Amendment?  The general test in the Ninth Circuit, as spelled out in Mamuad’s TRO motion, looks at these factors:

  1. Did the employee speak on a matter of public concern?
  2. Did the employee speak as a private citizen or public employee?
  3. Was the employee’s protected speech a substantial or motivating factor in the adverse employment action?
  4. Did the government have an adequate justification for treating the employee differently from other members of the general public?
  5. Would the government have taken the adverse employment action even absent the protected speech?

Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc).  For a court to find that employee discipline violates the First Amendment, the first and third question must be answered in the affirmative, the fourth and fifth question answered in the negative, and for the second question, the employee must have spoken as a private citizen.  The employee also has the burden to prove the first three factors.  If the employee is successful, then the burden shifts to the government to prove the fourth and fifth factors.

Applying this test to employee social media conduct isn’t simple, but it helps government employers assess whether the First Amendment counsels against disciplinary action.

Links:

Complaint in the Mamuad lawsuit
Motion for TRO in Mamuad lawsuit (w/o attached declarations and exhibits)

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With a single tweet, an employee of IAC (owner of websites like Match.com and Vimeo) went from relative obscurity to the target of an Internet inquisition.  Before boarding a plane, Justine Sacco posted this message on Twitter: “Going to Africa.  Hope I don’t get AIDS.  Just kidding.  I’m white!”  The tweet went viral while Sacco was en route to South Africa, oblivious to the controversy brewing online.  Death threats landed in her inbox.  Someone opened a parody Twitter account for Sacco.  A hashtag (#HasJustineLandedYet) was created to help people keep track the arrival of her plane.  IAC quickly condemned Sacco’s tweet in a press release and on social media.  The New York Times published an article about the controversy later the same evening.  The next day, IAC fired her.  Sacco issued an apology on Sunday.

Social media meltdowns are nothing new, but the story highlights four myths that can get professionals into social media trouble.

  • “I’m a pro—I know what I’m doing.”  Sacco worked as a communications director for IAC.  One might expect a PR professional to be sensitive about what their public expression, but Sacco’s expertise apparently didn’t save her from posting a message that many found offensive.  Before posting, think twice (or thrice) about how the message will be received by the public.
  • “No one will ever find out.”  Sacco’s Twitter account didn’t have many followers at the time she posted the controversial tweet—less than 200.  Having a small following can create a false sense of security that the public will never see the contents of the account.  But one doesn’t need to be an Internet rockstar to get into trouble.  Posts can go viral if a follower shares it with someone else, who in turn shares it with another person, and so on …
  • “No worries, it’s my personal account.”  Just because a social media account is designated as personal doesn’t mean it should have no filter.  Although Sacco used her personal Twitter account to make the infamous post, her account profile listed IAC as her employer.  This made it easy for readers to associate IAC with Sacco’s post.  As a result, IAC was involuntarily drawn into the controversy.  The moral of the story is that the lines between personal and professional are very blurry on the Internet.
  • “Just this one time.”  Bad judgment on social media is seldom an isolated incident.  Earlier in 2013, Sacco had tweeted: “I can’t be fired for things I say while intoxicated right?”  Because social media extends brand management beyond official company channels, companies should keep track of employees who publicly identify their employer and periodically check if those employees regularly interact in ways that damage the company brand.

The Sacco incident teaches that the value of training on good social media practices cannot be overemphasized.  The old adage about an ounce of prevention is no less true in the digital age.

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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.

Related Posts:

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