Tag Archives: social media

Court finds Employee’s 4-letter word Facebook Rant is protected concerted activity

In a recent ruling (NLRB v. Pier Sixty, LLC), the U.S. Court of Appeals reminds employer that they must exercise extreme caution when disciplining an employee for complaining about workplace conditions on social media, because these posts could be considered protected concerted activity – even if the posts contain explicit language.

The Case

In 2011, employees at Pier Sixty, a New York­­–based catering company, began a union organizing drive. Prior to the union election, Hernan Perez, a Pier Sixty server, posted a derogatory message about his supervisor, Robert McSweeney, on his Facebook page. This message was posted after McSweeney spoke harshly to a group of Pier Sixty employees. Perez, interpreted McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” which prompted the following Facebook post:

Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

When the company learned of Perez’s post (two days prior to the Union election), Perez was terminated.

Following his termination, Perez filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRB found that Perez’s termination was in retaliation for engaging in protected activity and the company appealed the decision to the 2nd Circuit Court of Appeals.

The Ruling

The NLRA prohibits employers from discharging an employee for concerted or union-related activity. Protected concerted activity includes employees (union or non-union) complaining about (and even commenting on) workplace conditions.

Working from this premise, the Court found that despite the fact that Perez used hostile language and openly attacked his supervisor on social media, Perez was complaining about working conditions and therefore was engaging in protected concerted activity when he posted that comment on social media.

To reach this holding, the Court used the NLRB’s nine-factor test to examine the “totality of the circumstances” and determine whether Perez’s termination violated the NLRA. The nine factors are:

  1. any evidence of anti-union hostility;
  2. whether the conduct was provoked;
  3. whether the conduct was impulsive or deliberate;
  4. the location of the conduct;
  5. the subject matter of the conduct;
  6. the nature of the content;
  7. whether the employer considered similar content to be offensive;
  8. whether the employer maintained a specific rule prohibiting the content at issue; and
  9. whether the discipline imposed was typical for similar violations or proportionate to the offense.

Specifically, the Court found that three of the above-listed factors led to its conclusion that Perez’s termination was unlawful:

Subject matter of the conduct (#5)

Here the Court found that the Facebook post “included workplace concerns: management’s allegedly disrespectful treatment of employees, and the upcoming union election.” While the post did contain profanity and attacks against his supervisor, the Court looked at the events that led up to the post and concluded that Perez’s post “was part of a tense debate over managerial mistreatment in the period before the election.” As a result, the conduct was likely protected concerted activity.

Whether the employer considered similar content to be offensive (#7)

Here the Court examined the employer’s past practice when responding to similar conduct. The Court found that the employer tolerated its employees (and managers) using profanity in the workplace. Specifically, the company had issued only five warnings for inappropriate language in the six years prior to Perez’s termination, and no other employee except for Perez had been terminated solely for using obscenities in the workplace. Combining those factors with the timing of Perez’s termination, this led the Court to believe that Perez’s termination was retaliatory.

The location of the conduct (#4)

 

Here the Court examined the forum Perez used to voice his complaint. The Court found that, while Perez complained online (where anyone in the world can potentially view), the comment was not made in the immediate presence of customers and did not disrupt the company’s operations. In addition, the company could not show that any customers were actually aware that these comments had been made. Based on the foregoing, despite the fact that Perez made a “vulgar and inappropriate” statement, the Court found that it was not the same thing as Perez making a public outburst in the presence of customers; therefore, the comment was protected concerted activity.

 

 

 

Take Home for Employers:

This case teaches employers a very important lesson – act with caution when disciplining employees for their social media posts, especially if those posts contain content that could be viewed as complaints about the workplace. While this case, as the Court admitted, “sits at the outer-bounds of protected, union-related comments,” it teaches all employers that under certain circumstances, even an offensive post can be protected.

Before disciplining an employee for his/her social media posts, it is recommended that you carefully consider the above-listed factors to determine whether the employee’s post could be viewed as protected concerted activity. Most importantly, consult with an HR Professional or qualified legal counsel before taking any action against the employee.

New Laws Taking Effect In October

Many states have passed laws that take effect in October of 2015. Check the list below to see what laws effect your state …

State New Law Effective Date
Connecticut Public Act 15-6 regarding social media privacy.   This law prohibits an employer from requiring access to an employee’s personal social media accounts. October 1, 2015
Public Act 15-56 protects interns from harassment and discrimination in the workplace October 1, 2015
Maine An Act To Promote Privacy in Social Media.   This law prohibits an employer from requiring access to an employee’s personal social media accounts. October 15, 2015
Maryland Senate Bill 604 protects interns from harassment and discrimination in the workplace October 1, 2015
Montana Veteran Hiring Preference Act for Private Employers. This law allows employers to adopt a policy that gives preference in hiring to veterans and their spouses. October 1, 2015

Maine Passes Employee Online Privacy Act

Maine’s governor signed H.P.467 to create new provisions for the state’s Employee Social Media Privacy law. The new law prohibits an employer from requiring an employee or applicant to:

  • Disclose the login information for a personal social media account;
  • Access a personal social media account in the presence of the employer;
  • Disclose any personal social media account information;
  • Add anyone to the employee’s or applicant’s contact list for a personal social media account; or
  • Alter settings that affect a third-party’s ability to view the contents of a personal social media account.

The law also prohibits an employer from taking adverse action against an employee or applicant who refuses to take part in the above actions.

As more states adopt similar laws, employers should review any relevant policies and procedures to stay compliant with the changing social media privacy landscape. Online and social media privacy legislation for all states can be reviewed here.

Social Media and Employee Privacy

With individuals’ use of social media outlets steadily increasing, employers may be tempted to use social media as a tool to research applicants and/or monitor their employees.  While social media appears to be the perfect tool for the job, using this tactic is a bad idea.

An increasing number of states have enacted social media privacy laws that are directly applicable to employers.  These laws recognize that employees (and applicants for employment) have a right to privacy in their social media accounts and place limitations on an employer’s ability to use social media to monitor its employees.

Among the types of behavior may be unlawful under these laws are requiring employees (and/or applicants) to: (1) accept the “friend” request of a supervisor or manager; (2) provide the employer with the employee’s social media log-in information; (3) alter the privacy setting on the employee’s social media account to enable the employer to view the employee’s pages; (4) access their social media accounts in the employer’s presence; (5) add the employer to their contact lists; or (6) requiring employees to create a social media account as a condition of employment.

Before using social media as an employment tool, employers should ensure that their use is compliant with applicable social media privacy laws.

Delaware Enacts New Social Media Policy

Effective as of August 7, 2015, Delaware employers are prohibited from engaging in the following activities:

  • Asking for an employees’ or applicant’s log-in information to a private social media account
  • Compelling an employee or applicant to accept a “friend” request
  • Forcing an employee or applicant to disable his or her account’s privacy setting.

An employer retains the right to monitor and control their own social media accounts.  Of course, employers should be mindful of disciplining employees for posts made on company accounts.  See our earlier post.

Delaware becomes the 22nd state to enact laws prohibiting such activities.  For further information, see the National Law Review article on the new law.

New Oregon Amendments to Social Media Laws

Effective January 1, 2016, Oregon’s existing social media law will be amended to prohibit:

  • requiring or requesting that an applicant or employee establish or maintain a personal social media account;
  • requiring that an applicant or employee authorize the employer to advertise on his or her personal social media account; or
  • taking (or threatening to take) adverse action against an applicant or employee for failing to establish or maintain a personal social media account.

New Virginia Social Media Law

The governor of Virginia signed a new law prohibiting employers from requiring current or prospective employees to share login credentials or add a supervisor as a contact on their personal account.   The new law takes effect July 1, 2015.

The new law also makes it unlawful for employers to retaliate against employees or to refuse to hire job applicants for exercising such social media privacy rights.  The law provides limited exceptions permitting employers to comply with federal, state or local laws and the rules of self-regulatory organizations.

 

Rhode Island Enacts Social Media Privacy Law

The “2014 Student and Employee Social Media Privacy” acts prohibit both employers and educations institutions from asking or requiring employees, job applicants, students or prospective students to provide log-in information or to sign into their social media accounts.

Employers

The law provides:

  • No employer is permitted to require, request, suggest or cause an employee or applicant to disclose personal social media information.
  • No employer may compel an applicant to add anyone, including the employer or agent, to the applicant’s list of contacts associated with the social media account.
  • Employers are prohibited from discharging, disciplining or otherwise penalizing any employee for refusing to divulge social media information.

Exception

The law does not apply to information about an applicant or employee that is publicly available.

New Hampshire Employers – New Social Media Restrictions

Beginning September 30, 2014, New Hampshire employers are prohibited from requiring employees or job applicants to disclose their login information for accessing any “personal account” or service through an electronic communication device.

Personal account includes an account, service, or profile on a social networking website used by a current or prospective employee primarily for personal communications unrelated to any business purposes of the employer.

The new law also prohibits employers from requiring employees and applicants from adding the employer or their agent to any personal account.  Additionally, employers cannot require that employees reduce privacy standards on any personal account, which would provide easier access to the employer.