If Your Employee Tweets About Hating Work, Can You Fire Him?

Many employers are confused as to what they can and can’t do in terms of limiting their employees’ social media activity. Here are some easy-to-understand guidelines.

In 2010, Mariana Cole-Rivera, a caseworker at a nonprofit social services provider, knew there was a lot of complaining going on at her workplace. She posted a fairly innocuous Facebook message, “My fellow co-workers, how do you feel?”

The answers, however, were far from innocuous:

“Try doing my job. I have five programs.”

“What the hell, we don’t have a life as is.”

“I think we should give our paychecks to our clients so they can ‘pay’ the rent.”

The upshot? Cole-Rivera and all the co-workers who participated in the social media thread were fired. But, in late 2012, that decision was overturned by the National Labor Relations board.

But then there was the case of the angry bartender. This drink jockey hadn’t gotten a raise in five years and also took to Facebook to make his displeasure known. He called his customers “rednecks” and wished that they would die while driving home drunk. He, too, was fired--but the NLRB upheld that decision.

Then there was the grocery store chain that put out new social media guidelines stating that the employees couldn’t share salary information or disparage the company or its products. The workers’ union is now appealing those edicts.

There are a number of similar cases out there and many employers are confused as to what they can and can’t do in terms of limiting their employees’ social media activity. Randel K. Johnson, senior vice president for labor policy at the United States Chamber of Commerce, says, “The [NLRB] is using new legal theories to expand its power in the workplace. It’s causing concern and confusion.” For their part, the NLRB says they’re just adapting longstanding free speech rules already established in the workplace to social media.

So when is it OK for an employee to vent on social media--and when is it really grounds for dismissal?

The NLRB’s Acting General Counsel, Lafe Solomon, attempted to clarify the situation about a year ago by issuing guidelines that focused on these two points:

  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are “mere gripes” not made in relation to group activity among employees.
Now let’s dig a little deeper into the meaning of all that. The NLRB is basically out to protect employees’ rights to openly discuss workplace conditions without feeling afraid they’ll be punished, or in the agency’s words, to engage in “concerted activities” for the employees’ “mutual aid or protection.”

Employees also have a right to discuss their pay and the terms of their employment with other employees; legally an employer can’t outlaw that, even if it does happen on a Tweet.

Since I am the founder and chief strategist of the Social Media Marketing University, I think it’s only appropriate that I provide a little quiz on the above material. So, here are a couple of social media incidents that prompted the dismissal of an employee: Can you determine if they were justified under the above guidelines or not?

* The Case of the Rabid Reporter

A reporter for the Arizona Daily Star had already been warned about his sarcastic tweets. But, during a wave of murders in Tucson, that reporter once again took to his Twitter account to put out the following messages:

“WTF! No overnight homicides? You’re slacking, Tucson.’”

“You stay homicidal, Tucson. See Star Net for the bloody deets.”

He was fired and appealed to the NLRB. How do you think they ruled?

* The Case of the Busted BMW Dealership

The manager of a BMW dealership decided to throw a special event to promote the release of a new model, an event with free hot dogs and Costco snacks. This wasn’t to the salespeople’s liking--they knew BMW customers are well-to-do and probably wouldn’t appreciate hot dogs as the featured cuisine. After the event was over, a salesman posted pictures of the employees standing sarcastically in front of the hot dog stand, as well as a picture of a BMW that was accidentally driven into a pond a few months ago.

Should he have been fired?

In the Case of the Rabid Reporter, the NLRB ruled he could be fired, as he was tweeting information that was detrimental to the newspaper, without any real focus on working conditions.

In the Case of the Busted BMW Dealership, nope, he shouldn’t have been fired. He was merely “vocalizing the sentiments of his coworkers.”

In general, if you’re having a genuine discussion about working conditions, that’s OK; if you’re just name-calling, insulting and engaging in generally destructive behavior, it’s probably not OK.

And, by the way, stay off Facebook if you’ve called in sick at work. The NLRB definitely can’t help you there!

[Image: Flickr user Hellobo]

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