I have posted before about National Labor Relations Board (NLRB)’s interest in social media, in several cases where employees were fired or disciplined after posting messages on social media sites critical of their employer or individual supervisors. Read more at http://ggemploymentlawupdate.com/2011/06/ . In some cases, the NLRB found that the employees had engaged in protected concerted activity under the National Labor Relations Act and that the disciplinary action taken against them for such conduct violated the Act, while in others it found that the conduct was not protected. Protected concerted activity generally consists of communications with other employees about working conditions or pay. If the communications do not involve those subjects, or include non-protected communications that are offensive (e.g., use of slurs, false statements, private or confidential information), then they may not be protected.
Aside from this NLRB interest in social media, some recent high-profile matters are worth noting and, in light of the ever-increasing use of social media by employees and companies, should lead employers to take a fresh look at social media policies.
Supervisor Fired When She Called Out Employees For Lying
Virginia Rodriquez was a manager at a Sam’s Club store in Texas. She was on a performance-improvement plan, meaning a disciplinary plan where any further policy violation would result in her termination. While on this plan, she viewed pictures of co-workers at a July 4th party that were posted on Facebook. Those same co-workers had called in sick to work that day. In response, she posted comments on the Facebook page of one of the offending employees in which she identified all of the employees by name and criticized them for falsifying the reason for their absence. One of the employees notified the human resource manager, who counseled Rodriquez for not dealing with the situation face-to-face and for violating the company’s social media policy, which barred “post(ing) complaints or criticism … in a way that is unprofessional, insulting, embarrassing, untrue (or) harmful …” The company found that she should have waited for the associates to return to work to discuss her attendance concerns.
Because she was already on her last step in the disciplinary process, Rodriquez was fired. She then filed a charge of discrimination, alleging age and national-origin discrimination and retaliation. When her charge was dismissed, she sued. On summary judgment, the court dismissed her claims, finding that the company had demonstrated that its decision to terminate her employment was based on her violation of the social-media policy. Specifically, the court held, the company’s decision to fire her after she elected to publicly chastise her direct reports via Facebook instead of in person constituted a legitimate, non-discriminatory reason for termination. Rodriquez v. Wal-Mart Stores, Inc., No. 3:11-2129-B (N.D. Tex. Jan. 9, 2013).
This case illustrates that while employees may be protected when they complain about their employer or supervisor using social media, the same privilege may not be given to a supervisory employee who complains about subordinates. Also, it illustrates that from the employer’s standpoint, disciplinary, counseling and other employment-related matters are better left to private communications in the workplace.
“Forking” And A “Big Dongle”
The recent firing of Adria Richards has created a firestorm. Ms. Richards was an application developer who was attending a PYCON convention (relating to the use of the Python programming language) in California a few weeks ago. She was in a large crowd listening to a presentation when she overheard two men talking. The men were sitting behind Ms. Richards. One of the men stated to the other that “he didn’t find much value from the logging session that day.” Ms. Richards turned around and told him she agreed. The man then said he would be “interested in forking the repo and continuing development.” At that time, the man sitting next to him began making sexual jokes about “forking” and eventually starting talking about “big dongles” ( a device that plugs into a laptop).
The jokes made Ms. Richards uncomfortable. However, rather than (i) tell the men their comments were out of line, or (ii) move to another seat, she took a photo of the men on her phone and tweeted the photo along with a message, “Not Cool. Jokes about forking repo’s in a sexual way and ‘big’ dongles. Right behind me.” She also tweeted: “Can someone talk to these guys about their conduct? I’m in lightning talks, top right near stage, 10 rows back.” Pycon staff met with the two men, who apologized for their behavior. Ms. Richards had apparently developed a large Twitter following of over 10,000 people who saw the tweet.
When the employer of the two men became aware of the incident, the one responsible for the inappropriate comments was fired. Ms. Richards was also fired by her employer, SendGrid. The company’s CEO, explained that while SendGrid supported her right to report the alleged behavior to PyCon officials, it did not support Ms. Richards’ use of Twitter to report the conduct. “Publicly shaming the offenders – and bystanders – was not the appropriate way to handle the situation.” The company also found that her conduct compromised her ability to perform her role as a “developer evangelist” for the company, as the publicity caused by the incident damaged both her and the company’s reputation within the developer community.
This incident illustrates how quickly information may spread on social media, and how easily a company may face public relations concerns when an employee posts comments that may be ill-advised or misplaced. Employers must carefully consider their social media policies and decide whether and to what extent to authorize employees to use Twitter and other sites as methods of branding, advertising, community involvement and the like. Employers must also frame their policies to ensure that employees use these social media tools responsibly.
Racial Slurs And Other Outrageous Statements
Timothy Dluhos is an EMS Lt. for the New York Fire Department. Operating a Twitter account under the name “Bad Lieutenant,” Dluhos has called Mayor Michael Bloomberg, who is Jewish, ‘King Heeb,’ referred to black people as “coloreds” and called Asian people “chinks” in various tweets. Dluhos tweeted about a controversial police shooting of a teenager, saying: “He was a perp & died like a perp, Oh, well.” A message about Bloomberg read: “That’s how King Jew sees it. Ban all guns & shootings will go down in NYC. But it’s the criminals w/the guns.” Dluhos’ Twitter icon featured a picture of Adolf Hitler. He recently tweeted that a gold Nazi-era pin with a German U-boat and a swastika is “my most prized artifact.”
Dluhos has been suspended for 30 days without pay because of his conduct, but leaders of a fraternal organization of black firefighters have called for his termination. “We think he should be fired. Unquestionably, we think someone with these types of views, with these types of attitudes, should not be employed by the New York City Fire Department,” said one of the organization’s leaders. Another member of the NYFD (son of the NYFD Commissioner) recently resigned when his inappropriate tweets became public. His tweets included: “I like Jews about as much as Hitler.” In another: “Getting sick of picking up all these obama lovers and taking them to the hospital because their medicare pays for an ambulance and not a cab.”
Other members of the New York EMS, fire and police departments have been disciplined for sharing photos of victims that show horrendous injuries or that include crude or otherwise inappropriate captions. Not only could these types of photos violate HIPAA regulations, but they could also give rise to claims against the departments by the victims and their families.
These examples illustrate just how difficult it can be for an employer to effectively address employee use of social media. Many employees feel their personal use of social media is just that–personal–and that it is unrelated to their employment and therefore cannot be regulated by their employer. The problem is that their opinions, attitudes and biases often reflect directly (and poorly) on their employer, and may be highly offensive to other employees and customers or public they serve. An employer’s failure to take action after becoming aware of this type of conduct may be read as condoning or sharing the views of the employee, and so prompt corrective action may be necessary. Accordingly, employers must have strong and effective social media policies to provide clear guidelines on employee conduct in using social media, and must provide effective education and training to employees on those policies.