Two Employees, Social Media, An Unlawful Policy. . .What Could Possibly Go Wrong?
The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all the excitement was over the fact employees were being punished for things they said on social media, which was surprising only because some people seemed to not realize that what is said online is just as good, or bad, as something you say in person. It appears many people still do not realize that what they write online can have real consequences. Those consequences were the subject of a recent NLRB case.
In Butler Medical Transport, LLC, 365 NLRB No. 117 (July 27, 2017) the NLRB evaluated two separate terminations of employees for comments made on Facebook. The employer provided ambulance transportation services and its employees consisted of emergency medical technicians who drove ambulances.
The Social Media Policy
The employer maintained a social media policy which stated, in part, “I will refrain from using social media sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.” It is undisputed that this policy is overbroad and therefore unlawful under the NLRA.
Employee 1 – “You could go to the labor board too”
An employee who had been terminated by the employer posted remarks on Facebook about her termination. The employee essentially complained that the circumstances of her termination were unfair because the employer had sided with a patient in a dispute. A few employees commented. Employee 1 posted the following comment: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.” Employee 1 followed up with the remark, “[Y]ou could contact the labor board too.”
An anonymous employee took a screenshot to this exchange and placed it on the Human Resource Manager’s desk. Employee 1 was terminated for violating the social media policy. He filed charges.
Employee 2 – “Hey everybody!!!!!
Employee 2 posted the following message on Facebook: “Hey everybody!!!!! IM (sic) F*&KIN BROKE DOWN IN THE SAME SHIT I WAS BROKE IN LAST WEEK BECAUSE THEY DON’T WANTA BUY NEW SH#T!!!! CHA CHINNNGGGGGG–at Sheetz Convenience Store.”
As with Employee 1’s case, an anonymous source pushed a screenshot of this post underneath the Human Resource Manager’s door. Employee 2 was terminated for violation of the social media policy. He too filed charges with the NLRB.
The Board Decides Employee 1’s Termination Was Unlawful And Employee 2’s Termination Was Lawful
The Board found that Employee 1’s termination was unlawful in violation of Section 8(a)(1). The Board found that Employee 1’s conduct was concerted activity because he “was engaged in a conversation with fellow employee’s regarding” the termination of an EMT and Employee 1 “advised [the terminated employee] about potential avenues of redress.” The Board cited authority holding that giving such advice has been deemed to constitute protected activity.
The Board also found the purpose of Employee 1’s action satisfied the requirement that it be for “mutual aid and protection” because he “posted his comments as part of an online conversation with fellow employees, triggered by one employee’s complaint about what she believed was her unjust discharge–a potential concern for all employees, who have a common interest in job security and protection against such a dismissal.” The Board found the termination for engaging in this activity a violation of Section 8(a)(1).
The Board addressed the alternate theory not addressed by the Administrative Law Judge that Employee 1’s discharge was unlawful because he was terminated pursuant to an overbroad policy. As we have discussed many times, including here, it is a rare case where an employee is actually terminated or disciplined pursuant to an unlawful policy. The Board applied Continental Group, Inc., 357 NLRB 409 (2011) which holds that an unlawfully overbroad rule may violate Section 8(a)(1) in two situations: if the employee was disciplined for engaging either in protected activity or, for conduct that is not concerted, but “touches the concerns animating Section 7.” The Board noted the employer can avoid liability by demonstrating that the employee’s conduct actually interfered with the employer’s operations and “that the interference, rather than the overbroad rule, was the reason for the discipline.” The Board found that under either prong Employee 1’s discharge would be unlawful and that there was no evidence his activity interfered with operations.
The Board found Employee 2’s conduct was not protected. Employee 2 did not testify for the General Counsel. The employer subpoenaed him to testify and he refused citing his “fifth amendment rights” so the Judge and the Board did not have the benefit of hearing from Employee 2. The evidence did disclose that Employee 2 explained the meaning of his Facebook post during his unemployment hearing and said he was driving his girlfriend’s car, not an ambulance. If this was true, then the Board found the comment to be not protected at all because the mechanical efficiency of a girlfriend’s car is not a concern to other employees. The employer also introduced service records showing that the ambulance driven by Employee 2 had never had repair problems. If Employee 2 was driving an ambulance the day he posted his comments about it breaking down, the Board found this to be “maliciously false” and therefore not protected. We have discussed this past standard recently in a case where a court of appeals criticized it as too exacting.
The Board also applied Continental Group to conclude that Employee 2’s termination was not unlawful under the overbroad policy because it was neither protected nor did it touch upon Section 7 activity.
Dissent Would Find Both Terminations Lawful
Chariman Miscimarra concurred in part (he agreed that Employee 2’s termination was lawful) but largely dissented arguing that the majority’s analysis of both Employee 1’s conduct and the application of Continental Group was in error. The entire decision in this case, including Board, dissent and Administrative Law Judge’s opinion is 29 pages. Chairman Miscimarra’s dissent weighs in at a healthy 15 pages and contains a good recitation of the law concerning protected concerted activity and the analysis of discipline taken pursuant to an unlawful policy. To sum it up, the Chairman believed the analysis under Continental Group is contrary to the Act in that it was possible that an employee who was discharged for cause could be reinstated in violation of Section 10(c) of the Act which prohibits the Board from reinstating or paying backpay to an employee whose conduct otherwise constituted good cause.
This case is yet another reminder for employers to have all written policies reviewed for lawfulness under the Act. Reviewing a policy for correct grammar and spelling also would not hurt. It is almost certain the Board will change the standard in the coming months but scrutiny of policies will continue in some form.
The case also presents two fact patterns side by side which demonstrate good cause and bad cause to terminate an employee. While there certainly is room to argue over whether Employee 1 was really acting in a concerted fashion when he offered unsolicited advice to the terminated employee to take her case to the “labor board,” such a conversation, even conducted virtually, must be seen as a high risk termination. Employees have these kinds of conversations all the time. When the conversation actually references the “labor board” it is hard to imagine the agency not taking issue with a termination suggesting that a case be brought to it.
The case also is another reminder to all who use social media: we are all one step away from having a screenshot of our internet musings shoved under the door of Human Resources.