Tag Archives | facebook

When Facebook Gets You Fired

By on December 5, 2011 in Our Blog

If you’ve been following employment law trends at all, you know a rising issue is the NLRB’s stance that some employee rants via social media outlets are “protected concerted activity” under the NLRA.  Thus, an employer who fires an employee for complaining about work in general or his or her supervisor in particular runs the risk of incurring the NLRB’s wrath.  The contours of what constitutes protected activity and what doesn’t are murky, and the NLRB is defining them on a case-by-case basis.  So a paramedic who was fired after calling her supervisor a “scumbag” on Facebook engaged in protected activity, according to the NLRB, while a Frito-Lay warehouse employee who was fired after posting on Facebook that he was a “hair away from setting it off” did not.  The agency focuses on a couple of primary factors in making this determination, including whether the comment was part of a group discussion (concerted activity) and whether it concerned terms and conditions of employment.

The Wall Street Journal reported last week that the NLRB has received 113 complaints about violations related to social media since May 2011.  Compared to just a handful of complaints received in the few months prior, this number reflects a growing trend.  So what is an employer to do?  First, have a social media policy.  Second, check with counsel to make sure the policy does not infringe on workers’ rights under the NLRA.  Third, as with all policies, enforce it consistently.

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Firing over Facebook post gets NLRB riled up

By on November 4, 2010 in Our Blog

The intersection of social media and employment law has been the topic of much commentary (including by us).  The general wisdom is that employers should adopt a social media policy and strictly enforce it to protect itself from, among other things, employees bad-mouthing the employer via social media, such as Facebook.  A recent lawsuit filed by the Hartford, CT office of the NLRB throws a complicating angle into the mix.

The NLRB has sued American Medical Response of Connecticut, Inc., based on the ambulance services’ termination of an employee following her posting on Facebook.  The employee complained about her supervisor and co-workers commented on her post.  She then continued to criticize the supervisor.  She was fired three weeks later.

While significant proof issues remain over the reason for the termination, the NLRB has taken the position that firing an employee based on a Facebook post violates the National Labor Relations Act by interfering with “protected concerted activity,” the Act’s linchpin.  According to the NLRB, the employer’s policies barring employees from making disparaging remarks when discussing the company or its supervisors are unlawful.  ”Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”  A hearing before an administrative law judge is set for January 25, 2011.

This case is one worth following.  If the judge rules in favor of the NLRB, the employer will find itself stuck between the proverbial rock and hard place, needing to navigate between protecting itself from risks inherent in employee use of social media and not impinging on employees’ right to consult with one another on issues pertaining to the workplace.  It will be a tricky balancing act, to be sure.


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A Word to the Wise: Don’t “Friend” Your Employees

By on October 28, 2009 in Our Blog

Some managers and employers have always walked a fine line between being friendly with their employees and being their friends.  The general rule of thumb (at least if you listen to employment lawyers) has been to maintain enough distance so that friendships don’t muddy the hierarchical workplace waters.  But with the onslaught of social media, and Facebook in particular, what are the new rules?  In Facebook lingo, a “friend” is anyone I am connected to on the site.  I have hundreds of “friends” on Facebook, some of whom I would not even know if I bumped into them on the street.  They are not really friends, yet the world of social media has created this gray area where a lot of mere acquaintances are suddenly called “friends” and are privy to all kinds of personal information.  What is a Facebook fiend who also happens to be a manager or an employer to do?

Our advice is not to “friend” employees (or superiors).  One of the biggest risks is that you may inadvertently learn information about an employee’s protected status that you otherwise would not have known.  Maybe an employee is struggling with depression and posting about her progress (if you have not yet been on Facebook, yes, some people post about such seemingly private information).  You may have had no idea she had a potential mental disability.  If you subsequently discipline her for any reason (poor performance, excessive absenteeism, etc), could she argue that it was her disability that motivated the adverse action?  Absolutely.  (Shanti Atkins of ELT recently blogged about this and other dangers lurking in the social media world – it’s worth a read if you want to know more).  

So resist the urge to “friend” everyone you know.  Managers and employers must always be mindful of their role vis-a-vis their employees, even when off-the-clock.  And, make sure you have a policy addressing the intersection of the world of social media and the workplace.  

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Local Employers Take Advantage of Social Media

By on September 17, 2009 in Our Blog

Northeast Ohio employers are using Facebook, LinkedIn and other social media sites to enhance marketing, networking, relationship building, and recruiting, reports the Employers Resource Council (ERC) in its recently released survey of how Northeast Ohio organizations are using social media in the workplace. According to the survey, 49% of employers use social media for networking and relationship building, LinkedIn being the most popular site.  A significant industry distinction: non-profits and non-manufacturing companies use social media to a much greater degree than manufacturers.

Not surprisingly, most organizations (60%) are discussing using social media to enhance external operations with customers and fewer (33%) are considering ways of using social media to enhance internal operations with employees. Forty-six percent of employers informally monitor the use of social networking tools by employees and 44% have at least one policy regarding employee use of social media in the workplace.

As we previously blogged, it is imperative that employers have a policy that is reasonable and capable of being monitored and enforced. Employers also need to carefully consider the use of social media in the recruiting and hiring process, where an employers’ net surfing can result in exposure to discrimination claims.

We recommend that employers recognize and accept the use of social media in the workplace and implement a policy that is consistent with company operations, culture and goals.

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Are Employers Facing Exposure to Discrimination Claims by Going On-Line?

By on May 12, 2009 in Our Blog

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According to a recent NPR piece, one out of five employers are trolling social network sites like Facebook and My Space to check out potential employees. And why not? On-line name searches and profiles on social media sites reveal all kinds of information that can be help vet potential employees. (Is it understandable that a meat packing plant wants to weed out PETA activists?) But those same sources also divulge information like age, race, religious views, disabilities and military status. The discrimination laws dictate that much of this information cannot be considered in hiring decisions.  When an applicant is rejected, what evidence does the employer have that the decision was based on objective job criteria and not one of the categories protected by law? And what about inadvertent violations of the Fair Credit Reporting Act, which requires employers to notify applicants and obtain their consent before conducting background checks?

Even employers who refrain from on-line searches are faced with the proliferation of social media resumes. On-line sites like Visual CV offer free multimedia resume building where job-seekers can include photographs, videos, work samples and links to social media and professional networking sites. So what is an employer to do? We suggest employers implement a comprehensive policy and practice on how and when on-line searches are performed, including proper documentation that hiring decisions are based on non-discriminatory job criteria.

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