It’s strange how quickly the world changes. Things used to be so simple, but now Steve Jobs has resigned from Apple and we’re having earthquakes in Washington, D.C.
A National Labor Relations Board report released last week attempts to explain the changing legal standards for social media usage in the workplace. Written by the NLRB’s general counsel, Lafe E. Solomon, the document provides several case studies to illuminate how much smack-talking employees can do online while remaining legally protected.
In short, it’s a lot. Still, not quite everything is different. Calling your boss a “super mega puta” will still land you in the chokey. More on this and some of the other case studies, after the jump….
There are three basic case types in the August 18 downloadable report: employees who got in trouble for protected, concerted activities; employees who were justifiably fired or disciplined for their Facebook posts; and companies who had vague, overly broad social media policies.
The 24-page document is worth a quick read. The case details are interesting, and the excessive use of quotation marks is entertaining. (Do you have lots of “conversations” with your Facebook “friends”?)
Many of the situations are pretty boneheaded, even when the employees end up in the right. For starters, some restaurant employees took to Facebook when it turned out their employer hadn’t been withholding enough taxes:
[A] former employee posted on her Facebook page a statement, including a short-hand expletive, that expressed dissatisfaction with the fact that she now owed money. She also asserted that the Employer’s owners could not even do paperwork correctly. One employee–Charging Party A–responded to this posting by clicking “Like.” That same day, a series of statements related to the initial posting followed.
Two other employees commented that they had never owed money before, and one of them referred to telling the Employer that we will discuss this at the meeting. Two of the Employer’s customers joined in the conversation, as did Charging Party B, who asserted that she also owed money and referred to one of the Employer’s owners as “[s]uch an asshole.”
The Charging Parties were not working on the day of the Facebook conversation. When Charging Party B reported back to work on February 2, she was told that her employment was terminated due to her Facebook posting and because she was not “loyal enough” to work for the Employer anymore. The following day, Charging Party A reported to work and was confronted by the Employer about the Facebook conversation. He was terminated and told that he would be hearing from the Employer’s attorney.
The NLRB ruled the discussions were concerted and protected, because they were “truly group complaints” or “circumstances where individual employees [sought] to initiate or to induce or to prepare for group action.”
Another case study involved a car salesman who was fired for posting photos of his company’s crummy sales event to Facebook. The NLRB said he shouldn’t have been fired, because he was protesting, along with other salespeople, that the inexpensive food and beverages served at the event (a.k.a. cheap hot dogs and cookies) would “send the wrong message to their clients and affect their sales and commissions.”
The report also discussed an ambulance driver who called her boss a “scumbag” on Facebook. I wrote about that case back in March.
Then there’s the crack squad of savvy employees who flew off the handle separately from any group grievance. Enter “super mega puta”:
[A]fter an interaction with a new Assistant Manager, the [retail store] employee posted a comment complaining about the “tyranny” at the store and suggesting that the Employer would get a wake up call because lots of employees are about to quit. Several coworkers responded to his comment, expressing emotional support, and asking why he was so wound up.
The employee responded to his coworkers’ postings by asserting that the Assistant Manager was being a “super mega puta” and complaining about being chewed out for mispriced or misplaced merchandise.
Surprisingly, this model employee was only suspended, not fired. The NLRB had no problem with that, because his complaint was entirely personal. The report reached the same conclusion regarding the mental hospital employee who was fired for mocking — you guessed it — psychiatric patients on Facebook.
We could go on all night. There are a bunch more cases involving union thugs, a hospital that apparently hated the internet… you get the picture.
Regardless of what you think about the NLRB’s policy positions, it is refreshing to see the agency taking such a proactive approach to informing the public on an ever-evolving, important, and confounding issue. Kudos to the NLRB (words I may never again write).
To paraphrase the Workplace Prof Blog: The report isn’t particularly groundbreaking, and it’s nice to see the government shed some light on — and simply summarize — the various cases in the area. Social media-related employment law is not going away anytime soon, and it has real implications for almost everyone, even the ever-shrinking percentage of us who haven’t yet applied to law school.
Report of the Acting General Counsel Concerning Social Media Cases [NLRB Downloadable PDF File]
NLRB releases report on social media cases [Ohio Employer's Law Blog]
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com.