Six new rulings show how NLRB’s leaning on social media use
January 30, 2012 by Dan WisniewskiPosted in: Communication, Employment law, In this week's e-newsletter, Latest News & Views, Management
Is the NLRB finally hammering out a sensible approach to social media?
Since the National Labor Relations Board got involved in a Facebook firing case in 2010, firms have been questioning just how and when it’s OK to discipline and fire staff for comments made on social media.
Recently, the agency released six new advice memoranda on cases involving staffers who were fired for social media comments.
Each case involves employees who filed complaints with the agency alleging that they were illegally fired for online comments.
How the NLRB ruled in each case stands as (mostly) good news for companies moving forward.
Policy was overbroad
Let’s start with the only losing case for a company, which comes from wire service Thomson Reuters.
The firm encouraged staff to post on its Twitter feed about how Reuters could create a better workplace. An employee responded that one way would be to “to deal honestly with Guild members.”
The next day the employee got a phone call from the bureau chief reminding her that the firm’s social media policy prohibited posts that damaged the company’s reputation.
Though the staffer wasn’t formally disciplined, she refrained from Tweeting again – and then complained to the NLRB, who ruled in her favor.
The agency said the firm’s policy of prohibiting employees from damaging the company’s reputation online without providing examples or limitations of what staffers could and couldn’t post could prevent staff from engaging in protected activity.
Employee discussion not protected
The next noteworthy case involved a therapist who complained on her Facebook wall about staff meetings.
Along with a co-worker, she complained about the meeting on Facebook. Her actions got her fired.
Yet, the NLRB ruled in favor of the company here.
Wait – isn’t this that a perfect example of employees using social media to discuss work conditions?
Not quite. The NLRB found that even though the therapist interacted with a co-worker online, neither person was trying to change the terms and conditions of the workplace – nd that meant she wasn’t protected.
The ruling suggests that just because two or more employees discuss work online doesn’t guarantee the discussion’s protected.
Instead, moving forward, it appears the agency will examine not just the original post made by an employee but also the reactions of colleagues to that post and how they interpreted it.
4 additional cases
The NLRB also ruled on four other cases, all in favor of the companies.
Why? Each of these cases involved a simple personal gripe – and that’s not protected, according the agency:
- A respiratory therapist was fired for updating her Facebook status during an ambulance ride to complain about her co-worker, who was sucking on her teeth.
- A bank teller was fired after she complained on Facebook that co-workers had complained about her performance to her supervisor.
- A nurse posted on a co-worker’s Facebook asking if a manager was still “making life miserable.” When the manager found out, he fired her.
- An accountant made a Facebook post falsely claiming that her firm engaged in fraudulent accounting practices and was fired when she refused to remove the post. The agency said that although the original post might have been seeking group activity, refusing to remove it after learning it was false meant she was no longer protected.
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February 6th, 2012 at 1:51 pm
My question is how a company can have a policy that covers an employee when they are off the clock. Whatever is said about the company in the public on one’s own time is freedom of speech. I feel these court rulings favor big business more than our freedom of expression and speech. This is definitely an example where our freedoms are slowly being stripped away. I am a HR Professional and do not recommend or support making negative comments about one’s employer on social media, but if someone does, I feel the freedom to do so is more important than any company’s interests. It’s a sad…sad…sad day in America when one can be fired from a job (especially an hourly employee) for comments made outside of work on social media even if no attempt is made at garnering discussion (this is irrelevant) It’s about enjoying the freedoms American’s have come to love, cherish, and fight for. This is indeed strange.
February 6th, 2012 at 3:17 pm
Yes, MMAN, it may be freedom of speech BUT that is totally seperate from employment. For example, if your company sold widgets and one of your salespeople was at an outside function telling key vendors that the product was garbage your company would do NOTHING about it?
I find it hard to believe that would feel NOTHING should be done even if they ARE “off the clock” as they are a representative of the company. Yes, you have freedom of speech BUT there are always reprecussions, both good and bad, resulting from one’s actions.
February 8th, 2012 at 8:23 am
Yes, Matt but if the information is true its true…now if it was false information that would be a totally different story. I mean if the widgets are garbage, they are garbage. I mean there are laws that protect employers when they provide “true” information on previous employees when they get calls for references on them, and those employees can suffer adverse effects from this even if the information is true…so what’s the difference here hmmm?
For example, I used to work for a very unsafe factory so you tellin me that I shouldn’t be able to gripe that out in public on social media on my own time even though it was true. I’m sorry, I just think this gives the employer too much power over freedom of speech and expression. And one should not be terminated from their job that they depend on for their livelihood for speaking the “truth”.
February 8th, 2012 at 12:30 pm
MMAN, let’s use your example…. You worked in an “unsafe” factory… per whose defination? The company? Industry standards? You own personal standards? Did you have data to back this claim? Did you communicate with mgmt about the unsafe practices or did you feel the best way to communicate the “unsafe practices” was a random post on facebook?
My point is that there is a RIGHT way and a WRONG way to do things. If you truely felt unsafe and management did nothing, I hope that you quit and/or notified OSHA.
So many times, employees will complain or fabricate/embelish stories. It is up to HR staff to investigate and seperate fact from fiction. Just because someone goes online and bellyaches about their job does not mean the complaint has merit. Going further, these comments may hurt the company’s ability to do business and overall success. Again, I will agree that there is a freedom of speech BUT YOU ARE ULTIMATELY RESPONSIBLE FOR WHAT YOU SAY. While you have the freedom to say it, does not mean you won’t end up in the unemployment line.
February 8th, 2012 at 1:40 pm
Matt, I could not have said that better.
As HR pros, we consistantly get to hear about people complaining about some things that they “feel” are wrong. However, once the investigation is completed we come to realize that this employee was only talking out the crack of their you know what.
Saying it on a HUGE scale as online where it will NEVER die and will be there forever means a tad bit more than just complaining to your partner.
February 10th, 2012 at 8:30 am
I’m just saying that an organization should not, I repeat not, be allowed to terminate someone based on something that was said on social media on their own time. Now if they are on the clock, that is a different story. And Matt, to answer your question, the factory that I worked was having at least one explosion every month, as well as hydraulic oil that would just be allowed to literally run out onto the floor, what’s more, it would have not been uncommon for molten metal to shoot out of the die presses like fountains (this practically happened every day at least two to three times a day) due to the dies not sealing properly and setting this oil on fire (I experienced this firsthand and should not have to compile data for this, that’s just foolishness and not practical). These things even the state fire marshall knew about but yet nothing was done about it due to local politics (they felt that keeping the employer in town was more important than safety). Now if facebook had of been around then, I feel I should have been able to post this stuff on the website (on my own time) without fear of repercussions. After all I did depend on this job for my livelyhood then. To be honest, if I had knew then what I know now, I would have quit, but just being practically right out of high school and naive about what my rights as a worker were, I didn’t know all my options, the company didn’t want me to know either. I’m just saying that an employer has a “long arm” here when they can terminate someone for something they did off of their time. I’m sorry, an employer doesn’t own a person but sometimes they think they do. Don’t get me wrong, I currently work for a pretty good employer and I would not post comments about them on facebook or an other outlets, but unfortunately a lot of people can not say that about their employers. So therefore I disagree with your statement that “BUT YOU ARE ULTIMATELY RESPONSIBLE FOR WHAT YOU SAY.” A company has no right to hold someone responsible for something they say off the clock unless of course if confidential information like trade secrets or something is the case. But complaints about work conditions are far from confidential information because that is what what the employee(s) themselves are experiencing at work everyday so they should have a right to talk about it.
February 10th, 2012 at 2:17 pm
MMAN, using your example, if I am your manager and I sexually harass you outside of the workplace, the company should not do anything do me because I am “off the clock”. After all, I am not on work time, I can sexually harass anyone I want.
Do you see how crazy this sounds?
February 10th, 2012 at 6:04 pm
MMAN… Freedom of speech is never really free and will always be subject to certain restrictions. There are always limitations. No employer is going to allow an employee to post anything about the company that is slanderous, obscene, or libelous. If you owned a company I’m sure you would want to be able to protect yourself from comments on the internet that could hurt your company.
February 10th, 2012 at 10:39 pm
A manager is an exempt employee who always represents the company. An hourly employee is a little different, they clock in and clock out everyday and when they leave for the day, they are no longer bound by the policies of the organization. If they are, the organization owns the person while they are employed. When you are talking about sexual harrasment vs complaints posted on facebook, you sir are not comparing apples to apples. Anything that I experience in my daily life such as if I feel that an organization treats me like crap or a manager has been showing favoritism at work, I should be able to post this when and where I choose when I am off the clock.
February 13th, 2012 at 10:52 am
@ Northcutt- Depends on whether the information is true or not. That is the key. In the U.S. I can say anything and everything I want to about a person and should be able to about a business as long as it is true or reasonably feel it is true. This is not slanderous, obscene, or libelous. When it comes to this it is in fact freedom of speech.
February 13th, 2012 at 10:56 am
@ Northcutt without fear of repercussions I might add.
February 13th, 2012 at 2:16 pm
@MMAN
I am really trying to understand your rational….
You said, “I’m just saying that an organization should not, I repeat not, be allowed to terminate someone based on something that was said on social media on their own time. Now if they are on the clock, that is a different story.”
Are you saying this only applies to non-exempt employees?
Have you spoken to your HR Rep/Manager about this issue? What is their response? I’m just curious….
February 13th, 2012 at 2:19 pm
@ MMAN
“Depends on whether the information is true or not. That is the key. In the U.S. I can say anything and everything I want to about a person and should be able to about a business as long as it is true or reasonably feel it is true. This is not slanderous, obscene, or libelous. When it comes to this it is in fact freedom of speech.”
“A business” or the business you work for?
February 13th, 2012 at 4:06 pm
You may be able to say what you want as long as its not slanderous, but the company does not have to employ you. It comes down to employment at will.
If you have safety concerns and you report that to the appropriate agency, you may have whistleblower protection. But if you are just blowing off steam because you don’t like your employer, they can end your employment providing they do not terminate you for an illegal reason.
Of course it is dangerous to make generalized statements about this because every instance will have details that can/will vary the outcome. Best thing is not to make negative statements about a company that you hope to continue to be employed by.
February 14th, 2012 at 9:14 pm
@H2r I’m saying that employers should not be able to end one’s employment based on something that was said off of their clocks. Let me first say that I have not made any negative comments about my employer on social media sites due to the fact that this would in fact be irresponsible. However, if I did make true statements about my employer on my own time, I should not be terminated for it. For example, if I were to get on facebook and complain that I am working in unsafe conditions or that I don’t have enough help at work, I should be able to without fear that I loose my job. The bottom line is that since employees now have an outlet through social media, organizations view these as threats. It’s no different where in other countries, governments try to restrict the voices of their people. I fully understand the “employment at will” doctrine but it in fact can be shot full of holes. In fact, this is one of my arguments that terminating employees for something like this should in fact be “an illegal reason.”
@Matt…any business whether its one you work for now or in the past.
February 15th, 2012 at 3:28 pm
@MMAN
You didn’t address my question…
You said, “I’m just saying that an organization should not, I repeat not, be allowed to terminate someone based on something that was said on social media on their own time. Now if they are on the clock, that is a different story.”
Are you saying this only applies to non-exempt employees?
Have you spoken to your HR Rep/Manager about this issue? What is their response? I’m just curious….
February 15th, 2012 at 9:47 pm
I have not spoken to my HR Rep/Manager about this. I don’t feel the need, because I stand firm in what I believe here. Yes, I do feel that non-exempt and exempt employees are different when it comes to what is done on and off the clock. Many exempt employees are often considered authorities and officials of the company whereas non-exempt staff are not. Exempt employees are usually, and rightfully so, held to higher standards or at least should be.
February 16th, 2012 at 10:21 am
@MMAN
So you are saying that non-exempt employees can bad-mouth a company on social media because they are “off the clock” and exempt employees should be punished for the same behavior because the are “on the clock”?
You also stated that “Exempt employees are usually, and rightfully so, held to higher standards or at least should be.”
1.) Do you understand what makes an employee exempt vs non-exempt?
2.) Why not hold all employees to high ethical, moral standards? Pay should not indicate what you can and can’t “get away with”.
You mentioned you were an HR Professional… if you don’t mind me asking, what is your position with the company?
February 26th, 2012 at 8:20 am
@Matt- It doesn’t really matter what my position is with the company I work for. I can say that I work in the HR dept. If I held a different position, my stance would be the same. And yes, I do understand the difference between an exempt and non-exempt employee based on IRS regulations. On a final note, as I’ve said throughout this post, I don’t think my employer should be able to terminate me for posting something I’ve experienced on social media be it positive or negative (again let me state that I haven’t posted anything negative about my employer). Here is my take on it, instead of organizations being able to terminate those who are posting negative comments about the company on their social media pages, I think these problems will eventually take care of themselves. Because if people are this unhappy with their jobs to go to this extent, they will voluntarily leave or they will end up messing up “on the clock” and then the company will have something, and rightfully so, to go on. I just think when it comes to firing people for something they’ve did off the clock is just not good wisdom. I think allowing these employees the space to mess up on the clock and letting things play out is good wisdom.
February 27th, 2012 at 2:28 pm
@MMAN
I hope, for your employer’s sake, you are not in a position in HR, though I don’t believe you are contrary to your previous posts.
Be careful man, you keep posting on those social media sites and you’ll be in HR Morning case study one day!
February 27th, 2012 at 6:27 pm
@MMAN is does matter.. Exempt and non-exempt does not come from the IRS regulations.. Nice try.
February 27th, 2012 at 8:20 pm
@Matt
Not that I have anything to prove to you Matt but I am indeed in an HR position where I work. Does that suprise you? Are you so narrow minded to think that I can not hold this perspective and still be an HR professional. That’s the problem with people like you, you think your stance on this issue or any issue is the only one. Furthermore than that, while this is definitely a place where people (HR professionals) can post their views, questions, and concerns, this is far from a social media site.
Moreover, you think that I would not be a good HR professional simply because of my stance on this one issue. I think you are confusing what I feel should be legal with what I know is legal. Apparently, it is legal for an employer to terminate a person based on posts they put on social media sites so I know this and can make decisions based on this. I mean, its not that I am so igorant that I would say that it is illegal because it isn’t. Don’t think that just because I don’t side with big business (and their respective interests) every time that I can’t be a good HR person. That may be just what HR needs, someone who can take a stand for the employer when it is right and take a stand for the employee when it is right. It is you that must not be the professional one here by stating that I shouldn’t be an HR professional due to my beliefs and philosophies.
February 28th, 2012 at 9:53 am
@MMAN
Yes, I am VERY surprised!
February 28th, 2012 at 6:10 pm
@ HR Guy- I meant the FLSA. IRS dictates employee or contractor. I get those mixed up sometimes. Sorry, I missed this one. I can admit it. And HR Guy why are you starting in on me. Why do you think it matters what my position is with the company I work for? It would not, I repeat would not change my perspective on this one.
@ Matt- you would be!