As I’ve said before, as the days and weeks go by, we will continue to update the analytical framework that you should use to determine whether adverse action taken because of social media activity violates your employees’ right to engage in “protected concerted activity.” Now, you may be able to cross off “fucktard” from the list of social media protected phrases.
The NLRB’s Office of the General Counsel recently issued an Advice Memorandum in response to a charge filed by a terminated employee. In early 2010, the employee had joined LinkedIn at the suggestion of his IT supervisor. When the invitation asked the employee for his job title at the company, the employee posted: “fucktard.” According to the charge, the employee posted that as a joke, and believed that it would be seen only by his supervisor.
The chronology of the rest of the story is important, as is the discrete nature of the Company’s various actions:
– In February 2011, the employee had a discussion with coworkers about how the company’s overtime policy may be unlawful.
– In March 2011, although none of the workers involved in the discussion complained, the company revised its overtime policy.
– In April 2011, the company considered starting its own LinkedIn site, and began viewing its own employees’ (public) LinkedIn posts. The company observed the “fucktard” post for the first time, and terminated the employee who posted it, on the ground that it violated company policy prohibiting material that is “obscene, defamatory, harassing, or abusive.”
In its Advice Memorandum, the Office of the General Counsel agreed that the charge filed by the terminated employee should be dismissed. Specifically, the Office found that there was no proof that the company took any action because of the overtime policy discussions, let alone that it knew about those discussions, and no proof that the offending LinkedIn post constituted “protected concerted activity.”
Employer Take Away: What should you as an employer take away from this development?
Context is critical. In this case, the use of “fucktard” in violation of a general workplace policy was a proper basis to terminate the employee, although the use of that phrase in another context may have prompted an entirely different result. For example, if the employee used the phrase during discussions about – and with some relation to – his feelings on the overtime policy (or some other concerted discussion about working conditions), the employee may have had an easier time suggesting that his termination was due to a statement that implicated protected concerted activity.
In the context of the facts here, however, the phrase was used in a context that was separate and apart from any protected concerted activity involving the overtime discussions. Consequently, the Act’s protection was not implicated, and the company was free to enforce its policy dealing with unacceptable online content. In proceeding with our established analytical framework for adverse action you intend to take based on your employees’ social media activity, you need to take the context of the activity into account, as much as the nature of the activity in and of itself.
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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