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Employment Security and Social Media Activities

Ciera Ambrose and Edgar M. Rivera, Esq.

Should an employee be terminated for a social media post that embarrasses or insults his employer? What if the post relates to unsafe working conditions or affects employees’ compensation? Today, many employers have policies calling for the termination of employees for such social media posts; however, not everything that displeases employers that employees may post is fair game for discipline. Some social media activities are protected and, therefore, exempt from employer retaliation.

The National Labor Relations Board (“NLRB”), the federal agency tasked with enforcing the National Labor Relations Act (the “Act”), issued a report on Jan 25, 2012 that underscored two main points regarding the NLRB and social media: employers cannot prohibit protected activities; and an employee’s comments on social media are generally not protected if they are mere grievances not made in relation to any protected activities.  Protected activities include the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

For example, in Rain City Contractors Inc. and Pacific Northwest Regional Council of Carpenters, carpenters posted a video on YouTube anonymously discussing workplace safety practices. The video was posted after the contractors learned they were working on soil contaminated by arsenic and other toxins. Within ten days of the video posting, the contracting company terminated the contractors and threatened to withhold raises and terminate other employees if they talked about working conditions with outsiders. The carpenters alleged that their employer violated the Act when after posting the video their employer by terminated their employment. The NLRB determined that the YouTube video was protected because the employees voiced concerns about safety in the workplace, and the public airing of their complaints accurately described their concerns about working conditions.

By contrast, in Karl Knauz Motors, Inc. and Robert Becker, an employee’s termination for embarrassing his employer by social media postings was lawful where the NLRB only partially found that an employee’s social media activity was protected. While their employer, a BMW retailer, was planning a major event, two salespersons criticized the quality of the food BMW intended to serve, stating that it did not reflect the luxury vehicles they were selling and, therefore, would hurt sales. After the event, one of the salespersons mockingly posted photos of people holding hot dogs, water, and Doritos, commenting, “[n]o, that’s not champagne or wine, it’s 8 oz. water. Pop or soda would be out of the question. In this photo, [a sales person] is seen coveting the rate vintages of water that were available for our guests.” The NLRB found that posting comments and pictures from the BMW event was a protected activity because it could have had an effect on his compensation. Additionally, after an incident where a salesperson allowed a customer’s thirteen-year-old son to sit in the driver’s seat of a car, resulting in the car driving over his father’s foot and into a pond, the above-mentioned sales person posted photos of the car in the pond with the comment, “[t]his is your car on drugs.” The NLRB found that posting the car in the pond with the comment was not protected because it did not have any connection to the employees’ terms and conditions of employment.

Social media, pervasive in today’s workplace, is a means to communicate and share information, and navigating the nuances of what activities are protected can be extremely difficult. If you have any employment questions regarding social media and protected activities, please contact The Harman Firm, LLP.

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