Two restaurant employees complained about the company’s accounting department on Facebook — and were fired. Two teen center employees took to Facebook after an office meeting and disparaged their supervisors’ decisions — and were fired. James Damore used Google’s employee message boards to criticize how his employer was implementing its diversity policy — and was fired.
Are employees always protected from actions by employers for things they say things about their employers on social media?
Sometimes they are, sometimes they’re not. Let’s look at these three cases more closely for some insights.
Three D L.L.C. (Triple Play) – Should employees be allowed to post comments where the general public can read them? Including obscenities?
Although Section 7 of the NRLA (National Labor Relations Act) specifically addresses an employee’s rights to engage in activities related to collective bargaining pursuits, those protections can extend to using social media to complain about work environments (presumably to other employees, whether the public sees those posts or not). In the 2014 National Labor Relations Board case Three D L.L.C. (Triple Play), employees used Facebook to discuss how they unexpectedly owed additional state income taxes because their employer made mistakes calculating the withholdings from their wages. When employees expressed their frustration, including using obscenities, on Facebook, they were fired. The employees brought their case to NLRB, which found the employer’s action to be unlawful.
The employers appealed the decision, but the appellate court upheld it, saying:
Almost all Facebook posts by employees have at least some potential to be viewed by customers. Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand. The Board’s decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use.
Two key takeaways here, according to Philip L. Gordon and Kwabena A. Appenteng of the employment law firm Littler Mendelson P.C., are :
1 An employee’s mere use of obscenities in a social media post that may be accessible by customers/clients is not enough, by itself, for the employee’s communications to lose the protection of the Act.
2 Employers should consider consulting with counsel before firing an employee for disparaging or defamatory speech when that speech takes place in the course of a group discussion in social media about work.
Richmond District Neighborhood Center – Can employees just say anything they want about their employers on social media and get away with it?
In another 2014 NLRB care, Richmond District Neighborhood Center – Employees at a teen center in San Francisco decided to complain about their supervisors and suggested how they would like to perform what the Board characterized as “insubordinate acts.” They also used obscenities.
The employees had gone too far, said the Board. “We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [the employees] Callaghan and Moore unfit for further service.”
Wasn’t violating Google’s corporate code of conduct sufficient grounds for firing James Damore?
We’ll have to see about that. Mr. Damore was fired after publishing a memorandum questioning the effectiveness of Google’s diversity methods because, he suggested, women may not have the same predisposition for understanding technology as men.
He has now filed an unfair labor practices charge against his former employer under Section 7 of the NLRA. As we’ve seen already, under Section 7 employees are entitled to complain about workplace policies to other employees. This is considered “concerted activity,” and is protected by Section 7 “if it concerns employees’ interests as employees.” Pay attention to this one.
The reality is that social media is “how we communicate these days” Joane Wong, New York-based senior attorney with the NLRB, said to Business Insurance magazine. “We no longer just talk to our co-workers face to face or pick up the phone. Instead, we type out our concerns and press send, or we post something or press ‘like.’ Now we have people pressing buttons and everything’s written out and is discoverable.”