Social media has spread through society so quickly and thoroughly that it has created difficulties for a wide range of individuals. For employees, individuals must deal with the fact that private activities that only affected a few individuals can now be spread across the internet for all of the public, including their employers. For courts, judges must wrestle with fitting 21st century technology into an 18th century legal system with 20th century laws. For employers, new ways to monitor employees blur the lines between work and home and provide temptations for potentially discriminatory behavior.
The dangers to employees and employers are typified in two recent cases. In the first, an employee finds that she may not have been as serious as she thought when she posted on Facebook “FIRE ME . . . make my day. . . .” See Tasker Healthcare Group, d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222 (May 8, 2013) (thanks to Employment Law Matters, among others, for pointing this memo out). In the second case, an employer learned that even though it didn’t like what an employee posted, acting on it could be illegal. See Deneau v. Orkin, No. 11-00455-B (S.D. Ala. May 20, 2013) (thanks to the Ohio Employer’s Law Blog for pointing this case out).
Hit the jump for all the double-edged-sword goodness…
Taken to Tasker
The Tasker opinion is interesting because it is part of a string of decisions coming from the National Labor Relations Board (NLRB) dealing with employee use of social media. The NLRB is responsible for enforcing labor laws that effect private employees and has issued several decisions finding that certain types of social media use are protected labor organizing (they even issued a memo last year detailing their ongoing rationale for such cases). Perhaps most famously, the NLRB found a car dealership employee to be exercising their protected rights when they posted ““I was happy to see that [dealership] went “All Out” for the most important launch of a new BMW in years . . . but to top it all off. . . the Hot Dog Cart. Where our clients could attain a over cooked weiner and a stale bunn [sic].” However, the NLRB had cautioned that there were limits to the exercise of protected rights and that not all social media use would automatically qualify.
In Tasker, an individual decided to air her grievances in a Facebook group message that had previously been used to organize a social event among current and former employees of the individual’s employer. After spending some time planning the event, the individual proceeded to discuss complaints with the employer with some of the former employees before culminating with the statement: “They [the Employer] are full of s**t… They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F**K… FIRE ME… Make my day…” One of the current employees then showed the message string to the employer, and the employer terminated the individual. The employer then requested an opinion from the NLRB as to whether it had violated the individual’s rights.
The NLRB noted that the touchstone of the protected rights is whether or not the individual was involved in “concerted activity.” It noted that concerted activity occurs when an individual encourages group action in order to bring group complaints to the employer. The board noted that the posts in question addressed only the individual employee’s gripes, not any shared concerns of the other employees. Specifically, the board found the statements “merely reflected her personal contempt… for her supervisor” and did not pertain to any mutual workplace concerns. Therefore, the board found that there was nothing unlawful in the individual’s termination.
The Tasker opinion shows that even in the rather permissive purview of the NLRB, there are social media postings that go beyond the bounds of protected activity. While public employees in Missouri do not share the same protections as the private employees in Tasker, there is a Missouri constitutional right “to organize and to bargain collectively through representatives of their own choosing.” Missouri courts have yet to have an opportunity to analyze whether there would be some form of protection for social media organizing through the constitutional right so it is still very much an open question. If you feel you have been discriminated against because of your organizing efforts, you should contact an attorney immediately.
Denau is not just a river in Egypt
Unlike in Tasker, in the Deneau case the employer was on the hot seat. In Denau, a female employee had applied for several management positions but had yet to be promoted. Potentially concerned that she might be being discriminated against, the employee posted on her Facebook page “anyone know a good EEOC lawyer? need one now.” The employee’s supervisor saw the post and forwarded it to his supervisor. The employee was terminated less than 7 days later. The District court noted that the employers knowledge of the post, combined with the short timespan between the posting the the employee’s termination, and held that these established a prima facie case of retaliation (in other words, demonstrated that there was evidence the employer had retaliated). Unfortunately, the employee had a number of other performance issues that, when combined with a recent audit of the employee’s work, provided a non-discriminatory motivation for the employee’s termination.
Denau demonstrates that there are dangers for employers when they use social media to monitor their employees. Just because an employee posts information online, that does not mean that an employer can use that information for termination purposes. Very often information posted online may share information about disabilities, national origin, or one of the other protected classes and employers must be careful not to take action based on such information.