The National Labor Relations Act (NLRA) applies to all employers and protects employees’ rights to “protected concerted activity.” This means that employees get to talk to each other about their wages, hours and working conditions and to take actions together to form a union. The National Labor Relations Board (NLRB) has interpreted these rights very broadly, and has found that many standard policies violate the NLRA, especially social media policies.
Some of the policies that NLRB says are illegal and overbroad include:
- At-will statements in employee handbooks, especially if they say that only the employer can modify at will employment. This potentially precludes collective bargaining agreements that contain “for cause” termination clauses. Most do.
- Confidentiality requirements about wages and investigations.
- Non-disparagement clauses, especially if they forbid saying bad things about the company or your boss.
- Social Media policy provisions that restrict or forbid “offensive, demeaning, abusive or inappropriate” posts or being “friends” with co-workers or supervisors, and telling employees to make sure social media posts are “completely accurate and not misleading.”
- Arbitration clauses (no loss there, but that’s a separate article).
What Is and Isn’t Protected?
Say you are a restaurant and one of your waitstaff gets mad about a tip and photographs the customer charge slip, then posts it on twitter complaining about the customer. You have a policy that says employees cannot make disparaging remarks about the company or its customers on social media.
At this point, it’s an employee complaining about a customer’s discretionary action, and it’s directed to the whole world. It is not a complaint about the employer’s wages, hours and working conditions to another employee. So it is probably a personal gripe and unprotected under the NLRA.
You can’t have waitstaff posting customer names and charge slips on twitter with nasty comments about the tips (even if it only shows the last four digits of the credit card number). So you call her in, tell her it was a really, really bad move, cut her hours for a week, and tell her if it happens again, she’s fired.
The employee then gets on Facebook and calls you nasty names, and tells all her friends not to go to that restaurant any more. She happens to be friends with about ten other people who work there. The co-workers chime in and offer sympathy. Then the discussion evolves into complaints about their schedule, breaks, the managers, the watered down cocktails, and how much they hate bad tippers.
Someone takes a screen shot of the discussion, prints it out and brings it to you. Fed up with the drama and really angry about the names you were called, you fire the employee.
She then brings an NLRA charge claiming she was terminated for her Facebook posts that were protected concerted activity. You point to the original customer post as well as the company social media policy that prohibits disparaging remarks.
Because the Facebook discussion was between co-workers complaining about wages, hours and working conditions, there is probably enough there to find that it was protected. The discussions criticizing the customers and cocktails may not be protected, but that won’t help you if at least some of the discussion IS protected.
You probably could have fired her for the initial Twitter post about the customer. But by waiting and pointing to the social media policy, you now have a NLRA violation to deal with.
What’s the Damage?
If someone complains that your policy violates the NLRA, the NLRB can review it, tell you where the problems are, and order you to change it. This is essentially a fix-it ticket. Not that big a deal.
The big deal is when you fire someone under an illegal social media policy. The remedy for terminating an employee for protected activity is reinstatement with back pay, senority and benefits. You may also have to post the NLRB decision. So now you have the last person you ever want in your restaurant back there. And you have to write her a really big check.
While a settlement is possible, the NLRB usually proposes both reinstatement and back pay. Any private settlement has to be approved by the NLRB before it will resolve the charge.
If a company is unhappy with the NLRB determination, it can appeal to federal court. But that would include a bond, continuing back pay if you lose, the cost of litigation, and your attorneys fees. (It’s possible, but unclear, whether you could also have to pay the other side’s attorneys’ fees if you lose.)
This isn’t quite as bad an an EEOC suit where you may also have to pay front pay, punitive damages and the employee’s attorneys’ fees. Still, you don’t want to have to go there.
What To Do
- Fire people for what they do, not for violating policies. Policies don’t prevent bad acts.
- Fire as soon as you know it’s not working out. Second chances, especially for misconduct, rarely work out.
- Understand that the more you try to control social media, the more it is going to backfire. California and other states have laws that make it illegal to discipline employees for off-duty conduct. So policies that tell employees what they can and cannot do on their personal Facebook pages will violate those laws. And under agency law, the more you control what employees do, the higher the chance you will be liable for it.
- Look at your policies and see where they can hurt you more than they help you. Especially look for broad language that gives the company control over employees’ actions away from work, discussions with other employees, or control over what employees can and cannot say about work and the people there. While you’re at it, get rid of your probation periods, progressive discipline, and entire social media policy.
- Figure out what you really want your employees to know and understand and teach them. Don’t just issue a policy manual.
If you would like to know more about potential pitfalls of employment policies, see my posts:
The best book out there on dealing with discipline, termination, and employment policies is Firing at Will by Jay Shepherd.
Also look for Donna Ballman’s new book from the employee perspective: How to Stand Up for Yourself Without Getting Fired (which I haven’t read yet, but will be reviewing soon.)