Employers Cannot Discharge Just Because It “Dislikes” Social Media

More and more employers are creating and implementing social media policies for their employees to comply with. Employers are concerned about their brand; employees affect the brand, positively and negatively. Social media policies allow employers to control its brand’s image and protect its reputation.

With the increased use of social media, employees are beginning to control how employers are viewed. An employer that has no online presence can have its reputation affected by its employee’s online actions. In relation to an employer, an employee’s online presence can be regulated, but there are restrictions. The National Labor Relations Board (NLRB) has provided guidelines for employers to follow when creating social media policies. A social media policy should not be so broad as to prohibit activity protected by federal labor law, such as conversations concerning wages or working conditions between employees.[1] Also, employee comments made on social media are not protected if they are simple bellyaches not made relative to group activity among employees.[2]

In a recent Facebook firing case, the Second Circuit Court of Appeals affirmed the NLRB’s finding that a Connecticut sports bar illegally fired two employees who criticized their employer on Facebook.[3] Two employees, of Triple Play Sports Bar (“the Bar”), commented and “liked” on Facebook that the Bar improperly completed payroll that resulted in payroll tax withholding errors.[4] The Bar fired the employees because it considered the Facebook posts to violate its internet/blogging policy in the employee handbook (the handbook also gave the Bar the right to discharge employees for “inappropriate discussions”). The NLRB found the discussions were protected by the National Labor Relations Act as work-related discussions and the handbook was so vague that it could have been construed to prevent employees from participating in protected communications.[5] The Bar argued the Facebook post and “like” were akin to yelling at management in front of customers. The NLRB and the Second Circuit disagreed; to accept the Bar’s argument would allow employers to chill all online speech of employees.[6]

What does the Triple Play case mean for employers? Employers cannot simply terminate employees because their online presence is dissatisfying to the employer. The Second Circuit and NLRB have affirmed this.

Employers need to create social media policies that are specific and do not rely on the employer’s discretion to interpret what is permissible. Employers should also create a safe environment for their employees to bring grievance before taking to social media.[7] A social media policy should also lay out what is considered confidential information.[8] The policy should inform employees about the consequences of their online actions, discuss the proper way to engage with other online, reflect the employer’s culture, and discuss what is illegal.[9] If discharge is the consequence, make it clear and not a consequence of an activity protected by federal labor law.

[1] National Labor Relations Board, Fact Sheets: The NLRB and Social Media, https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media (last visited Nov. 23, 2015).

[2] Id. at Footnote 1.

[3] Three D, LLC v. Nat’l Labor Relations Bd. (2nd Cir., 2015).

[4] 361 N.L.R.B. No. 31, 200 LRRM 1569 (2014).

[5] Id. at Footnote 4.

[6] Id. at Footnote 4.

[7] American Express, Employees Gone Wild: 8 Reasons You Need A Social Media Policy TODAY, https://www.americanexpress.com/us/small-business/openforum/articles/employee-social-media-policy/ (last visited Nov. 23, 2015).

[8] Id. at Footnote 7.

[9] Id. at Footnote 7.