If your employees posted rants about your customers on Facebook using profanity, could you fire them? Well, it depends. Given how widespread the use of social media is and how “case-by-case” the analysis of “protected activity” is under the applicable labor laws, this question is always difficult if not dangerous. A recent Advice Memorandum (July 7, 2017) issued by the General Counsel’s Office of the National Labor Relations Board demonstrates why.
First though, for most who employ workers in the South, the National Labor Relations Act (NLRA) has been and will likely remain unfamiliar. I talk and blog about it whenever the chance arises, because clients rarely appreciate that a law that was developed to address the issues surrounding unions—collective bargaining, the fairness of labor campaigns, unfair labor practices, etc.—also applies to employers who have no connection to a union. Additionally, the rules surrounding “protected concerted activity,” conduct for which one may not be terminated, as they apply to social media, are as counterintuitive as it gets.
So let’s turn to this recent Advice Memorandum. Three customer service representatives who worked for Premera Blue Cross of Washington posted, liked, and replied (you know, the typical exchanges) on a private Facebook page their experiences dealing with angry customers calling in with complaints about their health savings account (HSA) cards not working at several locations. Generally, the Facebook posts faulted the customers for their rudeness and their unrealistic expectations concerning the time it would take to resolve their issues, have new cards mailed out, and elevate their issues to a supervisor’s level. But in the process, the Premera employees were extremely disrespectful in their remarks, referring to the customers as “bitches,” “prick,” “rude, crotchety douchebag,” and “freaking dick.” This was a private conversation between three people, and I have taken these words way out of context. But these were the words they used.
Another Premera employee complained on the company’s ethics line about the Facebook exchange and included screenshots. It was unclear whether any customer saw the Facebook page, but it was a private page. Premera fired the three employees for violating its core values policy, and it warned other employees who either liked or shared the posts.
The Advice Memorandum concluded that Premera violated the NLRA. Basically, the Facebook posts qualified as protected concerted activity even though the employees were talking about customers, not their employer. For non-union related conduct to constitute protected concerted activity, it must be engaged in for mutual aid or protection—that is when employees are seeking to improve the terms and conditions of their employment; and the conduct must be “concerted,” that is with other employees. The Memorandum held that the conduct was for mutual aid because employee complaints about customers relate directly to the working conditions. Such conduct can lose its protection under the NLRA when it is disloyal, reckless, or maliciously untrue, for example when employees disparage an employer’s product or when a statement is wholly out of proportion to a related grievance. The Memorandum concluded that the Facebook comments addressed customer mistreatment of employees on a private Facebook page and were not untrue and so were protected. Result: the employees should not have been fired.
When a termination is found to have violated the NLRA, the typical remedies are reinstatement of employment, backpay, and a posting of a notice that the employer has violated the law, all of which might provide a union who has your company in its sights with new reasons to persuade your employees they need a union. All very frustrating.
The labor laws restraining employers responding to employee misbehavior on social media are confusing and often unrealistic, to say the least. While Facebook and Twitter are increasingly the tools of sophisticated labor campaigns, as applied to non-union activity, most of us use them to blow off steam or chide our family and friends for their stupid political views. I don’t buy for a skinny minute (charming Southern aphorism) that these employees were in the pre-contemplation phase of organizing into a bargaining unit. Terminating these folks for violating some “core values policy” strikes me as dumb, but hey, employers have the right to make stupid business decisions. A better option would have been to dig into the facts with the employees to find out more about their interactions with customers and to identify where improvements could be made in the customer service model—including by the way figuring out why Premera itself, whose function it is to ensure that customers’ HSA cards are issued accurately, were not.
On the other hand, the Memorandum concluded that the Facebook comments did not render the employees unfit for further service because although they were vulgar, they did not incite violence. Really? That’s the test? (It is.) These employees are customer service representatives. I could argue that their comments are prima facie evidence that they are unfit for service in the job. Trust me, I’ve done almost this exact job. Anyone who shows the poor judgment to gripe about his or her employer’s customers using outright vulgarity on Facebook, with its cryptic privacy settings, could easily be expected to snap on the next difficult customer call. In any case, it ought to be the employer’s decision who is and is not fit for the job.
Alas, this is the legal landscape. Before you decide to terminate an employee for engaging in any kind of rant or commentary on social media, whether about your company, a supervisor, your customers, or any work-related issue, seek the advice of able counsel. The analysis is tricky and the costs of being wrong are high. Sadly, it’s the law y’all.