Post Summer Part 1 of 5 - Protected Brand vs. Protected Photo

by Cozen O'Connor
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In some respects, the summer of 2013 seemed long. In others, it feels as if Memorial Day and the early June heat wave were only yesterday. But just because this blog went on a brief summer hiatus doesn't mean the world of social media and employment law stopped revolving. So for the next five posts, I will be discussing five interesting developments that took place during the summer.

Beginning with Part 1 today: what's new with social media firings?

Normally, I'd expect to see somewhat lewd conduct in a city subway station;  not in a Subway restaurant. According to the Huffington Post, one "sandwich artist" at Subway posted an Instagram picture of himself holding his penis on Subway sandwich bread. The employee's, um, artist's, caption accompanying the picture: "My name is ---- and I will be your sandwich artist today."

The good news for him, I suppose, is that no customer apparently asked him to heat up that particular sandwich. The bad news, however, is that the picture went viral and the employee/artist was fired. The question raised then is whose interest is more protectable here?  One of the big issues that I believe will be on the social media horizon (and one that will be noted further in Part 4 of this post-summer blog series) involves employee picture taking in the workplace, and attempts by companies to ban it. We all know that smartphones are used these days far more for their cameras than their phones, so where's the line?

There is no indication that the sandwich artist's firing here will lead to a charge before the NLRB.  That is, it doesn't seem like an employee's sexually explicit photograph involving the employer's food and brand/image (and, though I can't say for sure, I'm guessing there's some sanitary rule violated here too??) rises to the level of "protected concerted activity" under the National Labor Relations Act.  Even with the relatively pro-employee rulings that have recently been issued by the NLRB. This Subway firing seems to be the outlier, though. What do you do when the picture-taking employee in your workplace is not engaging in artistry on the extreme end of the spectrum? What do you do with the grey area?

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

The autumnal air that's almost upon us should not cause you to think you are less fettered when it comes to taking action because of your employee's social media activity. You may very well be within your rights to act when significant brand damage is at stake, or the employee acts in a way that falls outside the still cozy confines of the NLRB's ire. But at least consider the competing interests (your company's, the employee's, the government's) before deciding to take adverse action. Otherwise, you might be left holding the, um, bag.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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