Think you can fire an employee for posting obscenities aimed at a supervisor? Think again. According to a recently published NLRB decision, an employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by firing an employee for an obscenity-laced spiteful Facebook post directed towards a supervisor on the grounds that the employee’s post was — just wait — protected concerted activity. Generally, for a concerted activity to be protected, two or more employees must be acting together to improve wages or working conditions. However, as in the case below, the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.
The facts of the case are this: Two days before a scheduled union election (which was triggered by employees’ concerns relating to the way they were treated by management), a company supervisor allegedly made disrespectful remarks to three employees. According to reports, the supervisor told the employees, who were serving guests at a catered event, to turn their heads “toward the arriving guests and stop chitchatting” and later to “spread out, move, move” when he wanted them to clear the plates from the appetizer course.
One of the servers was greatly insulted by what he deemed to be the supervisor’s disrespect and posted the following message about the supervisor on his personal Facebook page that evening:
The next day, the company learned of the post, and after conducting an internal investigation, eventually terminated the employee on the grounds that his Facebook comments violated company policy. Perhaps setting itself up for defeat, the company did not identify the specific policy that the comments violated and did not specifically identify the basis for the termination.
Not surprisingly, the disgruntled ex-employee brought an unfair labor practices charge. The presiding Administrative Law Judge (ALJ) determined that the employee’s Facebook comments alleged employee mistreatment and sought redress through the upcoming union election, thus qualifying as protected, concerted activity and union activity.
Although this case fell under the NLRA because of its connection to Union activities, it nevertheless provides some lessons for other employers in the private sector, even where unions are not present. First, a strongly drafted social media policy that sets forth impermissible conduct clearly and specifically is necessary. Second, consistent enforcement of the policy is critical. Lastly, employers should speak with legal counsel prior to making a decision relating to firing an employee if protected activity may potentially be an issue.
To discuss drafting a social media policy for your workplace, contact experienced employment attorney and RPNA managing partner Drew E. Pomerance today.