October 13th, 2014
The Legal View guest blog:
Gaillard Law Firm LLC
Social Media Policy and Employees
The issue of employee use of social media poses a difficult dilemma for employers. In addition to the concern about lost productivity due to employees use of various forms of social media while on the job, recent decisions by the National Labor Relations Board (NLRB) give employers additional concerns when making decisions about whether to discipline or even terminate employees for allegedly improper comments made through social media. Employers need to review any policies they have relating to employee use of social media and they need to be careful in the application of those policies.
Many employers may not even be aware that they are subject to the National Labor Relations Act or the jurisdiction of the NLRB. Unlike some federal regulatory bodies or federal statutes that premise their jurisdiction over employers based on the number of employees, the NLRB takes a different approach and asserts a very broad view of its jurisdiction over employers. The Board takes the position that it has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level. The Board has established certain standards for asserting its jurisdiction based on the volume of business conducted by the employer. A description of these jurisdictional standards is provided on the Board’s website at www.nlrb.gov. Based on its own jurisdictional standards, the Board claims jurisdiction to regulate the large majority of non-governmental employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.
Under Section 7 of the National Labor Relations Act, employees have the right to organize and engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers with employee handbooks or other written policies should review the language contained in those policies, particularly having to do with social media, to determine whether employees could reasonably read them to prohibit discussion about the terms and conditions of employment for the mutual aid and benefit of the workforce. An employer can be deemed in violation of Section 8(a)(1) of the Act by interfering, restraining or coercing employees in the exercise of their Section 7 rights, which can include employee conversations through social media such as Facebook, Twitter, blogs or other social media platforms.
In a recent case, the NLRB issued a Decision and Order where two employees claimed they were wrongfully terminated based on their Facebook activity. The case is Three D, LLC d/b/a Triple Play Sports Bar and Grille; Cases 34-LA-012915 and 34-LA-012926. The employees involved in that case were Jillian Sanzone and Vincent Spinella. Sanzone was a waitress and Spinella was a cook and they both worked at Triple Play Sports Bar and Grille in Watertown, Connecticut. In 2011, after filing her tax return, Sanzone discovered she owed additional incomes taxes to the State of Connecticut based on the withholding practices of the employer.
The trouble started when Sanzone and Spinella responded to a Facebook post about the issue. A former Triple Play employee posted a status update on Facebook that said:
Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!
After that initial post, the former employee and other current employees continued the discussion about the tax situation and placed the blame on one of the owners. Sanzone replied with her own comment and said “I owe too. Such an asshole,” apparently referring to the owner. Spinella simply responded to the original post by the former employee by liking it on Facebook. When the owners of Triple Play learned about this social media activity they fired Sanzone and Spinella contending that the employees were disloyal and had engaged in disparaging and defamatory comments.
Sanzone and Spinella disputed their termination and an administrative law judge agreed with them and ruled that the employer unlawfully responded to the employees’ protected concerted activity. The restaurant appealed to the NLRB but that appeal was ultimately unsuccessful. The NLRB ordered Triple Play to re-instate Sanzone and Spinella and they were also required to cover any lost earnings due to the wrongful termination. Finally, the NLRB also ordered injunctive relief which included a requirement that the company revise its internet/blogging policy to remove the prohibition against employees engaging in “inappropriate discussions about the company, management and/or co-workers.”
Click here to read more about the Triple Play case and NLRB appeal.
This case is just one of several recent decisions by the NLRB that have come down in favor of employees and against employers in the social media context. These rulings show that an employer faces a high burden when trying to establish that social media comments are “so disloyal, reckless, or maliciously untrue” as to lose their protection under the Act. Some commentators suggest that recent decisions by the Board in those social media cases is a reflection of the efforts by the NLRB to aggressively examine these social media and other communication policies to insinuate itself into more and more non-union workplaces as the number of unionized workers continues to decrease.
Employers need to be very careful in the way they draft and enforce these social media policies along with any other employee policies that could be construed by the NLRB as infringing on an employee’s ability to engage in protected activity under Section 7 related to the terms and conditions of employment. The NLRB seems to be closely scrutinizing employer policies that seek to protect confidential information or that appear to restrict certain types of communication. Examples include policies designed to require “respectful” posts or prohibitions against negative comments about the employer or restrictions on the use of profanity. In this current regulatory climate, it is difficult for employers to know whether their policies are compliant with the NLRA as each situation is typically very fact specific. What is not in doubt is the active nature of the NLRB in addressing these claims and challenges to company policies where the Board construes the language of the policy as being in violation of the Act. Employers should review their current policies and consider whether an employee could reasonably construe the policy as prohibiting them from discussing subjects with co-workers related to wages, performance evaluations, workplace safety, discipline or other legally protected terms and conditions of employment.
Employers should establish social media and other employee policies that delineate specific rules that are clear and easily understood. Since the law in this area seems to be somewhat fluid right now, employers should follow future developments and possibly have their policies reviewed by counsel. Employers are also advised to consult with their human resources professionals and/or legal counsel before taking any action against an employee based on violation of any company policies – particularly when it relates to employee communications through social media.
Tom Gaillard is an attorney withGaillard Law Firm LLC in Mobile, Alabama. Tom is admitted to practice in all of the federal and state courts in Alabama and Mississippi. He maintains an active civil trial and appellate practice and his practice areas include employment litigation, commercial litigation, professional and medical liability, toxic torts, product liability and governmental liability. Tom also counsels and advises companies on various legal matters.
ELM Legal View Guest Blog Post Courtesy of –
Thomas O. Gaillard, III
Gaillard Law Firm LLC
Alabama – Florida – Mississippi – Oklahoma
Telephone: 251 338-4285