If I’ve heard it once, I’ve heard it a million times: “It’s employment at will in this state. I can fire my employees for any reason or no reason at all.” Well, if that “any reason” or “no reason” has something to do with social-media based condemnation of your company, you might want to think again before permanently “unfriending” your employee.
This past week, the Second Circuit affirmed an NLRB ruling that an employee’s Facebook post criticizing her employer (the “Triple Play Bar and Grille”) in connection with its income tax withholding practices (trying to keep this post PG, but there may have been an expletive or two in there) and a colleague’s “like” of the post amounted to protected concerted activity under the NLRA. This meant that their subsequent terminations were a big NLRA “no-no.”
But, but . . .
Noooo, it didn’t matter that there was no union to be found on the premises. The NLRA protects concerted activity by all employees, even those unaffiliated with any union.
It also didn’t matter that customers could see the public employer-bashing, because the content wasn’t directed at customers, was not defamatory, and did not tend to disparage the employer’s brand, products, or services.
On top of all that, the Court also affirmed the NLRB’s ruling that the employer’s expansive internet and social media policy went too far, unlawfully prohibiting activity protected under the NLRA.
Thus, unfortunately, the employee came out on top of this Triple Play.
So, what to do if you’ve got employees who take to the Interweb to air their grievances?
- Don’t overreact;
- Count to ten;
- Take a deep breath; and
- Call your favorite employment attorney and ask her what she thinks.
It very well may be the case that your employee crossed the line and you’ll get the “(Y)” to give them the boot. But given the NLRB’s relentless pursuit of what it perceives as overreaching by employers, it’s better to be “safe” than hit into a triple play. (#LGM!)