HR Answers: Facebook Firing

By swkezman

Scott Kezman was featured in the March 2011 issue of Credit Union Management Magazine article, HR Answers: Facebook Firing.

Credit unions that restrict what employees can do and say on social media sites may need to re-evaluate their policies and practices, if a recent case becomes more common.

A settlement has been reached in a case involving the firing of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page.

The National Labor Relations Board’s Hartford regional office issued a complaint against American Medical Response of Connecticut, Inc. on Oct. 27, 2010, alleging the firing violated federal labor law because the employee was engaged in protected activity when she posted the comments about her supervisor, and responded to further comments from her co-workers. Under the National Labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers and others.

The NLRB complaint also alleged that the company maintained overly broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement, the company agreed to revise its overly broad rules to ensure they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

Could these types of cases become more common?

“I think the cases we will see will be efforts to find boundaries regarding employee rights to expression regarding their working conditions,” says attorney Scott W. Kezman, partner in Kaufman & Canoles Labor & Employment Practice Group, Norfolk, Va.

“When most people think of the National Labor Relations Act they think %u2018unions’—and it is true that most of what the NRLA covers has to do with union/management relations,” says Kezman. “However, the NLRA also protects certain rights of non-unionized employees to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as protected concerted activities.”

He cites a few examples of the protections for non-union employees:

  • two or more employees addressing their employer about improving their working conditions and pay;
  • an employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
  • two or more employees discussing pay or other work-related issues with each other;
  • refusing to do any or all of these things.

“Several years ago, there was a stir created when a non-unionized employer's rule prohibiting employees from discussing their salaries with one another was found to have violated the NLRA,” he explains.

“There also have been several prior cases where the National Labor Relations Board (i.e. the federal agency that administers the NLRA) defended non-unionized employees' right to criticize their employer and their working conditions—only they were pre-social media,” Kezman adds. “The Facebook posting case is really just an extension of these earlier decisions to another, newer form of employee expression. Credit union employers with non-unionized workforces need to understand that the NLRA's prohibitions on employee expression related to working conditions do apply to them.”

However employers do have the right to restrict some information. “Employees cannot disclose confidential information concerning their employer, its business plans, employees, new business efforts, customers, accounting and financial information,” Kezman says. “Nor can they make false and/or defamatory statements about their boss or employer. The tough cases are going to be those where the employee criticism of a boss or employer is opinion based—employers are not going to like seeing these types of opinions broadcast through social media but, unless they are so over the top and disruptive that the employer can't effectively run its business, they are going to be difficult to stop.”

What actions should credit unions be taking?

“Credit unions need to have a reasonable social media policy in place that recognizes employee rights under the NLRA but sets appropriate boundaries--and they need to communicate this policy to their employees,” says Kezman. “In addition, credit unions need to periodically monitor what is being said about them on social media and elsewhere in cyberspace.”

This article originally appeared in the March 2011 edition of Credit Union Management Magazine and was reprinted with permission.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2018.

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