Two New Decisions On Two Old Fronts – Part 1 of 2

Speculation starts to become educated positing as decisions in our area of discussion continue to be issued in greater numbers.   Two recent decisions involving social media and employment law are worth noting:  one on Facebook firings (today), and one on the discovery of social media accounts in litigation (Friday).

This past Friday, an Administrative Law Judge at the NLRB issued a decision after holding a 3-day non-jury trial in February.   The case involved three employees who were fired by a San Francisco clothing store (Bettie Page Clothing).    The ALJ found that the employer violated the employees’ “protected concerted activity” rights under the National Labor Relations Act (“Act”) when it fired the employees for various Facebook posts, and further violated the Act by implementing an overbroad handbook policy.    

The ALJ’s decision is heavy on the background details and the sequence of events leading up to the termination.   It is worth a perusal.   In terms of the first violation, the gist is that the employees began posting comments on Facebook that criticized their store manager and how the manager treated employees, as well as “presented the concerns of the employees about working late in an unsafe neighborhood[.]”    The ALJ ruled that the employer failed to meet its burden of showing that it would have fired the employees even without the offending posts.   Reading between the lines, though, it is clear right from the first lengthy footnote on page 2 of the decision that the ALJ was not happy with counsel’s demeanor and litigation tactics, or the credibility of the employer witnesses. 

On the second violation, the ALJ found that the employer violated the Act by “maintaining a rule that forbids employees from disclosing wages and compensation” to other employees or third parties.   Although the employer removed the improper policy from its handbook right after a complaint was issued in this case, there was no evidence that employees were ever actually informed of the change.  

We will see how this decision holds up on appeal.  For now, the ALJ has required the employer to reinstate the employees (that should be a fun morning hello), compensate them for lost back wages, and post a notice in the store that states both that the company has violated federal law and the rights that employees have under the Act.

Employer Take Away:   What should you as an employer take away from this development?   

There are a few take-away’s.   First, don’t piss off a judge.

Second, emotions seemed to play a part in the employer’s underlying decisions after learning of the Facebook posts.    Stay away from trigger-happy decisions, and give careful consideration to what should (and can) be done in the face of social media activity that you deem to be inappropriate.

Third, as with any adverse employment decision, make sure you are on solid ground for your decision, and, particularly, that your documentation is effective and backs up your stated reason for the adverse decision.   There’s little worse at trial than documents that are inconsistent with the testimony of your corporate representatives.

Fourth, make sure you review your handbooks and policies for compliance with the most recent developments in this area of the law.   And when you do act to change something in good faith, make sure you tell your employees.   It does nothing to create proper policies if those policies are not communicated and enforced appropriately.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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