Beware of Using Stale Policies and Seemingly Derogatory Employee Facebook Posts To Support Terminations

As we have blogged before (see our Social Media tab for more posts), the NLRB continues its storm of decisions on social media cases.   The NLRB recently awarded  reinstatement and back pay to several terminated employees who had posted derogatory statements about their supervisor on Facebook. The employer in the case, Design Technology Group, LLC (which makes Bettie Page clothing) is a wholesale and retail clothing sales company that operates a store in San Francisco, where the action took place.  Several employees were unhappy with the way the store manager treated them (both at work and outside of work) and took to Facebook to complain about it.  While their supervisor was away from the store on a business trip, the employees posted statements about her on Facebook.  This included statements that she was “immature as a person” and that she made their lives “miserable….”  One of the employees also stated that she intended to bring a book into work concerning rights of workers in California.  Another employee noticed these posts and alerted the supervisor, who returned from her business trip early to terminate the employment of the employees who had made the posts.

The NLRB held that these terminations violated Section 8(a)(1) of the National Labor Relations Act because the employer terminated the employees for engaging in protected concerted activity.  According to the NLRB, the Facebook postings constituted “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment…” and that their conversations were “for [their] mutual aid and protection….”  The NLRB therefore confirmed the administrative law judge’s order to reinstate the employees, with back pay.  For good measure, the NLRB also confirmed the ALJ’s order that the employer remove a rule in its employee handbook that prohibited employees from discussing or disclosing their wages and compensation to each other – although there was no discussion of this rule forming the basis for the employees’ terminations.

The take-away from this case is that employers should carefully consider the reasons for terminating an employee who has posted offensive statements online.  If the postings discuss working conditions, a manager’s behavior, or other issues that could be construed as matters employees could focus on for their mutual aid and protection, the employer should consult with counsel before terminating the employee(s).  Employers should also continue to review their employee handbooks to ensure compliance with the National Labor Relations Act – and California law, as the provision at issue in this case also violated the California Labor Code.

Robert R. Flemer

 

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