In the case in question, five employees of National Hispanics of Buffalo complained about their workplace on Facebook, and the organization fired them as a result. They appealed to the National Labor Relations Board (NLRB), where Judge Arthur Amchan ruled that the nonprofit must rehire all five employees and pay them for the time they were off.
Why Were the Employees Fired?
An employee made the comments in questionon her Facebook wall after a co-worker had told her that she wasn’t doing enough work for her clients: “Lydia Cruz, a co-worker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?”
Other employees then commented on the statement. Both the comments and the statements were made on a Saturday, not a work day for any of those involved.
Unfortunately, the co-worker who had originally admonished the employee had access to the comments and reported them to her boss. Five of the employees involved were then fired, the reason given was that they were participating in bullying and harassment against the slagged employee.
The judge makes a point of stating that the organization had not replaced the employees in question, and the organization may have been looking for an excuse to cut back on costs.
What the NLRB Says
In the decision rendered by Judge Amchan, discussion on Facebook is considered to be a “protected concerted activity”.
This mirrors another case earlier in the year when American Medical Response of Connecticut fired an employee over publicly criticizing her boss on Facebook, in which her rights were also referred to as concerted activities. According to the Berkeley Technology Law Journal, this means that “employees must be permitted to discuss the terms and conditions of their employment with co-workers and others”.
Should You Change your Acceptable Use Policy?
The short answer is yes. Employees can write anything they want about your company on their own Facebook profiles in off hours, so anything limiting that usage in your acceptable use policy should be changed. Your IT and legal departments should revisit acceptable use policies once every few months or after major decisions like this one to ensure that they are still current, and employees should be made to sign the updated copies.
A decent workplace social media and Internet acceptable use policy should do a few things well. It should bind the employee to using the Internet specifically for work purposes during work hours in the office, and ensure that any electronic forms of communication aren’t used to disseminate confidential information about the company.
It should also ensure that the company is operating within the bounds of the law. This Supreme Court ruling issued earlier in the year stated that employers were within their rights to search text messages even when they were sent for personal use, as long as they were sent on company-owned devices. That’s certainly something an employee with a company-issued cell phone wants to keep in mind.
These most recent rulings from the NLRB clearly define messages on a private Facebook wall as “protected concerted activities”. The NLRB has put Facebook in the “hands off” category as far as acceptable use policies are concerned. That’s not to say that anything that an employee says on a more public service such as Twitter is still protected, so any acceptable use policies mentioning that or any other social networking services can still remain in place.
Can I Still Check Out Employees or New Hires on Facebook?
The NLRB decision relates only to comments on a Facebook wall and does not limit you from checking out a new hire or employee on a public social media profile. You may still also access a private Facebook profile as long as you have your employee’s permission, but you just can’t fire them for any comments there that are made during off hours.
What If Comments Are Made During Work Hours?
If that is the case, termination may be a bit harsh, but disciplinary actions could be warranted, depending on the situation.
Social media can definitely expose businesses to risk, so its usage has to be monitored. A social media profile can also tell you a lot about a person, so asking employers to ignore them completely would be wrong. You need to know what kind of person you are hiring in order to maintain company morale and security.
The key lesson after this latest case is that the more personally you take comments on a social media profile, the more likely you are to get yourself and your company in trouble. You should handle any perceived slight impersonally and run it through human resources and possibly your legal department before acting on it, or you could find your company at the mercy of a similar NLRB ruling.
Angela West dreams of opening a Fallout-themed pub featuring wait staff with Pip-Boys. She’s written for big insurance companies, small wildlife control businesses, gourmet food chains, and more. Follow her on Twitter at @angelawest.
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