#Fired: Post a tweet, lose your job

August 23, 2016 - by: Katie O'Shea 0 COMMENTS
Katie O'Shea

Many people enjoy spouting off what they view as 140-character tidbits of wisdom on the social media platform Twitter. But recently several individuals have found themselves in trouble with their employers (read: former employers) for their tweets or other social media posts.  Tweet

One recent example was a loan officer from Michigan who crafted a racist tweet, not worth repeating here, following First Lady Michelle Obama’s speech at the Democratic National Convention. Twitter users saw the tweet and tracked down the home loan company the woman worked for. The result was a flood of tweets directed to the company’s Twitter profile calling their attention to the tweet and asking if the employee’s views represented the company’s values.

One individual tweeted to the company, “you can’t tell me someone who holds this view on the @FLOTUS is not abusing her powers on other minorities.” Others went straight to the point and asked the company, “Will you continue to employ someone who is racist?”

The company saw the tweets and immediately took action by issuing a statement in response on Twitter. The company denounced the woman’s reprehensible comments and stated she was no longer employed with the company. The company emphasized that they do not condone such comments, which were made on the employee’s personal account.

Similarly, a national bank employee lost her job earlier this summer after a Facebook rant filled with racist remarks. The employee’s profile listed that she was an employee of the bank, and social media users immediately began sending the bank thousands of comments about the post. The bank investigated the post and terminated the employee, issuing a statement that they were aware of the reprehensible post on Facebook and the employee had been terminated. In this instance, many customers even threatened to close their accounts with the bank.

The public appeared particularly attuned to this issue given that in 2013 the bank was ordered to pay more than 1,000 African American job applicants over $2 million in back wages and interest after a judge found one of the company’s offices had discriminated against them based on their race.

Even celebrities like Blake Shelton, a judge on the popular singing competition show The Voice, have been called out by the Twitter masses for their tweets. Just last week, the country singer tweeted what some have dubbed a “non-apology” for past racist and homophobic tweets. Some of the tweets in question stem as far back as 2008, proving once again that the Internet never forgets.

With social media, it’s possible for a tweet or post to go viral immediately, and companies must be attuned to their social mentions and quickly take action if problematic posts surface. As with the bank case, delaying an investigation and taking action could cost a company customers and create bad PR.

If a company is considering taking action against an employee for a problematic post on social media, HR should be sure to immediately save or print a copy of the post in question in case the employee attempts to delete it. Employers also should keep in mind that some states might limit an employer’s ability to investigate social media or take action against an applicant or employee based on off-duty conduct.

Of course, employers also must be cognizant of the National Labor Relations Act (NLRA) in analyzing employees’ social media posts. In recent cases, the National Labor Relations Board (NLRB) has found that certain employee posts, and even rants, were protected activity under the NLRA because they pertained to concerted activity and union activity. The NLRB has found that employers violated the NLRA by terminating employees for participation in protected conduct, and has awarded back pay.

In light of these recent tweets, it’s important for employers to evaluate their social media policies and consider how they might respond to an employee who makes a racist, sexist, or otherwise inappropriate remark on a personal social media page. Employers should be extremely careful when disciplining employees over social media posts, however, especially if the posts pertain to conditions of employment. Employers considering disciplinary action or termination based on an employee’s social media post should act swiftly but consult with counsel beforehand.

Exercise Aniston-esque restraint when analyzing offensive employee posts

February 22, 2016 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

by Ed Carlstedt

This week’s employment law lesson comes to us from the movie Horrible Bosses. In the movie, Julia (played by Jennifer Aniston) is a dentist who employs dental assistant Dale (played by Charlie Day). After Julia uses her boss status to torture and torment Dale for most of the movie, Dale finally records her improprieties and delivers to her the following long-overdue payback speech:

This is what’s gonna happen. I’m going to take a two-week-long, very expensive holiday with my fiancée. Let’s call it a honeymoon. And YOU’RE going to pay for it! Then I’m going to return to a nice, rape-free workplace from now on. Because if you so much as LOOK at my sexy little a**, Julia, I will have yours locked the f*** up you CRAZY B**** WH***! Man, that felt GOOD!

In the movie, Dale’s quote is an amusing moment of vindication and redemption, one that Julia’s conduct warrants. You literally find yourself rooting for Dale as he delivers the obscenity-laced tirade. The notion of telling off a horrible boss without fear of reprisal is every Woman Watching Shocking Message On Social Network Late Nightaggrieved employee’s dream. And in the movie, there was nothing Aniston’s character could do other than sit there and take it. But in real life, what does an employer do when an employee posts similar obscenities about it on social media. Well, if the National Labor Relations Board (NLRB) has anything to say about it, you might have to adopt an Aniston-esque approach to responding to the potty-mouthed employee.

In Pier Sixty, LLC, 362 NLRB No. 59 (Mar. 31, 2015), a managerial-level employee of a catering business (Bob) asked several staff-level employees to spread out during a fundraising event and stop chitchatting. One of the employees was so offended by the manager’s instructions that he posted the following on Facebook:

Bob is such a NASTY MOTHER F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Shortly thereafter, the employer learned about the Facebook post, conducted an investigation, and terminated the employee. In analyzing the employee’s Facebook post, the NLRB found that his comments were protected activity under the National Labor Relations Act (NLRA) because they pertained to concerted activity and union activity. The NLRB found that the employee’s comments (all of his comments, including the F-bombs and accompanying family love-making references) were protected. Therefore, the NLRB found that the employer violated the NLRA when it terminated the employee for his participation in protected conduct, and it awarded him back pay.

Several other cases adhere to the sentiments of the Pier Sixty case, including Three D, LLC v. NLRB, 2015 WL 6161477 (2d Cir. 2015), and Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015). These cases demonstrate that employers should be extraordinarily careful when disciplining employees over social media posts, particularly when the posts or questionable conduct pertains in any way to conditions of employment.

Based on these decisions, the NLRB and courts are likely to broadly define protected activity under the NLRA, even when the employee’s comments are riddled with profanity and make statements damaging to the employer. Thus, just like Jennifer Aniston in Horrible Bosses, employers may be forced to turn the other cheek when confronted with what appear to be obscene and inflammatory employee remarks. To the extent you are an employer considering disciplinary action based on an employee’s social media post, we highly recommend you consult with counsel before taking such action.

Some extra points about fantasy football and your workplace

September 15, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

Although the actual games have been overshadowed lately by the off-the-field misbehavior of some of the players, the NFL season opened last week. And if you listened closely enough, you could almost hear HR managers and small business owners across the country yelling at their employees, “Get off your fantasy football website and get back to work!”shutterstock_134095112

Like college basketball’s March Madness, fantasy football’s massive popularity arises in large part from the fact that it gives zealots and non-enthusiasts alike a chance to “get in on the action,” and not just enjoy a sporting event but also win bragging rights over all of their friends. Indeed, anyone who has ever participated in either endeavor is sure to have bitter memories of losing the NCAA pool to someone who picked teams based on uniform colors or mascot cuteness, or losing a fantasy football championship to someone who couldn’t pronounce Tim Biakabatuka’s name if his life depended on it. Let’s just say, there is a certain amount of luck involved (except when I win).

In any event, what does this have to do with workplaces, and in particular, YOUR workplace? A lot. Challenger, Gray & Christmas, a global employment consulting firm, recently estimated that employers worldwide suffer $13.4 billion per year in lost productivity due to fantasy football. In other words, employers these days no longer worry about their workplace becoming a modern-day “Peyton Place.” Instead, they worry about their employees wasting valuable work time trying to guess whether Peyton Manning will throw his customary three touchdown passes this week.

What can employers do about it? Some businesses block fantasy football websites from their employees’ computers, but with everyone carrying a smartphone in their pocket these days, that’s kind of like going for a field goal when you’re down by 28 points in the fourth quarter. Of course, employers can hardly ban their employees from participating in fantasy leagues altogether; not only is it impractical, but most employees do save their fantasy sports obsession for after work, and some states have statutes forbidding employers from taking adverse action against employees for engaging in lawful activities on their own time.

The answer is actually deceptively simple, like benching your quarterback when he’s playing on the road against the Seahawks. Just remind your employees about, and continue to enforce, your existing practices and policies about workers devoting their time and energy–during working hours–to their jobs. The issue is really no different from the employee who spends all day scanning Facebook or looking for deals on Craigslist. Or for that matter, playing solitaire on his computer or engaging in personal telephone calls. Any of this conduct, if it rises to an inappropriately high level, more than likely violates company policy and therefore warrants corrective action by the employer.

And don’t forget, distractions like NCAA office pools and fantasy football leagues, if handled appropriately, can actually be positive factors in the workplace. What better way for employees to get to know each other than talking trash about their teams and debating  age-old questions like “If I bench my kicker because he’s playing in a snowstorm in Lambeau Field, am I being incredibly clever, or am I over-thinking my way to the consolation bracket?” (From personal experience, I can tell you it’s the latter. Curse you, Mason Crosby, circa 2009.) Just be sure that the league doesn’t intentionally or inadvertently exclude certain employees, for example, along the lines of gender. “He got more face time with the boss because of the office fantasy football league, and therefore he got the promotion” could well show up in a discrimination lawsuit in your company’s future; it has already shown up in some cases across the country.

Bottom line, fantasy football leagues can be fun team-building events for your workplace, but like all things HR-related, they must be monitored closely. And when problems arise, don’t be afraid to call a time out or throw a penalty flag, or your employees’ fantasy may become your company’s worst nightmare.

The keyboard is mightier …

July 14, 2014 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

This past Friday, LeBron James announced his return to Cleveland after fourshutterstock_294301 years of displaying his talents at South Beach. One of the biggest clues that something was in the works was when the open letter written by Cleveland Cavaliers owner Dan Gilbert in 2010 to the then-departing LeBron suddenly went missing from the team’s website. In the letter, Gilbert had lashed out angrily at LeBron for leaving the team, calling the move to Miami a “cowardly betrayal.” Gilbert also made fun of LeBron’s nicknames and boldly [and wrongly] predicted that the Cavs would bring home an NBA championship trophy before the Heat.

So when the scorned team owner’s letter suspiciously disappeared in the days leading up to LeBron’s decision, radio talk show hosts and talking heads alike were abuzz with conjecture that a deal with Cleveland was in the works. Ultimately, this speculation turned out to be true, with LeBron announcing on Friday—via a very well composed article on SI.com—that he would be returning to Northeast Ohio with the hopes of improving more than just the basketball team’s performance.

The role that Gilbert’s letter played in this made-for-TV sports drama is yet another highlight of the dangers of social media in the employment context. In an interview with USA Today, Gilbert stated that he angrily wrote the letter “in about 45 minutes” after watching LeBron’s “the Decision” television special in 2010, in which LeBron infamously announced he was “taking [his] talents to South Beach.” Sure, several fans also held public displays of displeasure with LeBron’s abandonment, screaming and crying on camera, burning LeBron Cavs jerseys, and putting up signs. But all of this conduct was quickly forgotten as it faded in memory. Not the letter, however, which remained on the website for roughly four years.

As Gilbert lamented in the interview, “if you Google me, it’s the first thing that comes up.” The lesson to be learned—and if you’re an employer, this should be the millionth time you’ve heard this lesson by now—is that in this digital age, you must absolutely be 100% sure of what you are writing. This means that you (and your employees) must be constantly reminded to think before typing. The obvious reason is that writing an email or posting a blog is pretty much forever. This is not necessarily a new lesson about the durability of the written word. Edmund Spenser highlighted the staying power of writing in his famous sonnet No. 81, “One Day I Wrote Her Name Upon the Strand.” [Make your high school English teacher proud: Read it here.]

But the Internet makes things even more “forever” because of its universal accessibility and the ease of sharing. Your kids are so aware of this fact that software developers have created apps that erase texts and pictures sent to their friends so that no record of the conversation exists after it takes place. In the employment context, the implications of posting without thinking can be much more far-reaching that jeopardizing your small-market NBA team’s chances to reclaim its native son and the absolute best thing to happen to Cleveland since the Kardiac Kids. Rather, a poorly worded or hastily sent email can be the source of ongoing controversy between two managers or awkward relationships among coworkers. If you’re lucky, your quickly typed social media message might actually become a viral joke leading to Internet fame, like this Buzzfeed employee. But most likely you’ll just end up looking like a jerk. It could even show up at your deposition as “Exhibit A” with a rather testy plaintiff’s attorney on the other side asking you just exactly what you meant when you used the word(s) “[insert worst nightmare here].”

So, once again, I implore you to do the write thing, and think before you type.  [Grammatical pun intended.]

With pals like this, who needs enemies?

May 12, 2014 - by: Andy Tanick 2 COMMENTS
Andy Tanick

For those entrepreneurs who have struck it rich thanks to the Internet, Al Gore’s invention has been a wonderful thing. But a news story last week illustrated that the Internet also can cause a lot of headaches–even for the same people whose children and grandchildren may never have to work a day in their lives because of the worldwide wealth created by the worldwide web.

This story comes to us courtesy of the Internet payment processing giant, Paypal. According to Paypal, the company’s former director of strategy, Rakesh “Rocky” Agrawal, responded to anshutterstock_166165568 offer to take on a new role at the company last week by “choosing to turn a career-defining moment into career-destroying infamy.” Specifically, “Rocky” responded to the offer by inexplicably posting a series of angry, profane, and bizarrely nonsensical tweets on Twitter. Those tweets that were actually comprehensible included suggestions that Paypal executives perform physically impossible feats that best not be described here. Those tweets that were less decipherable included messages such as, and we quote, “jjjjj 999 I’mk nokkkkkiikkknokkkkkiikkkkkkjjnmo88iok99okkoolooolo.” Rocky has since claimed that his tweets were meant to be private (oh, THAT explains it) and has apologized, but Paypal isn’t buying what he is selling–probably even if he offers to accept payment via Paypal.

The Paypal situation provides yet another example of the havoc that employees can wreak on their employers through social media. Gone forever are the days when employees limited their sexual harassment, defamation, and just plain old stupid behavior to old-fashioned media such as memos, letters, emails, and the spoken word (remember that one?). These days, men and women who are intent on behaving badly have so many more ways to do so. “Older” employees (i.e., those over 30) still use Facebook and Twitter, while the millennials have long since moved on to things like Snapchat, Instagram, and other social media that the author, being decidedly well beyond millennial status, doesn’t even know about.

What can an employer do to minimize its risks arising from employees’ social media use?  For starters, adopt a written social media policy that makes the following points:

  • Communications that would violate the company harassment policy are equally prohibited if posted on the Internet.
  • Confidentiality policies, including policies regarding client or patient confidentiality, apply with equal force to Internet posts.
  • Employees should state that any controversial (e.g., political) views expressed in their posts are personal and not those of the company.
  • Employees should not post statements, photos, or videos that reflect poorly on their employer, unless the post is legally protected (see below).

In addition, employers should revise their existing harassment, misconduct, and confidentiality policies, among others, to make sure they cover online conduct.

Of course, employers also need to avoid violating their employees’ rights with regard to social media. While there is no right to “free speech” in connection with private employment, the National Labor Relations Act (NLRA) provides both union and nonunion employees with certain protections that can apply to their use of social media. Specifically, the NLRA provides employees with a right to “engage in concerted activity for the purpose of collective bargaining or for other mutual aid and protection.”  To be protected, the activity must be undertaken by two or more employees, or by one employee with the authority of others, and it must relate to terms and conditions of employment. The NLRA also makes it illegal for an employer to interfere with employees in their right to engage in such protected activity, and forbids rules, policies, or actions that “reasonably tend to chill employees in the exercise” of these rights.

In addition to the NLRA, other laws can come into play when employers affirmatively seek out information about employees via social media. The Stored Communications Act (SCA) prohibits unauthorized access of disclosures of stored communications, like emails or social media postings. The Computer Fraud and Abuse Act (CFAA) prohibits obtaining information via intentional unauthorized access to “protected computers” involved in interstate commerce. The Fair Credit Reporting Act (FCRA) may come into play when employers seek out certain background information about employees. And there’s always a basic claim for invasion of privacy.

So, what’s the lesson here? Like Paypal recently learned, your employees’ use of social media, even on their own time, in their own homes, on their own computers, can still create headaches for you as their employer. A good social media policy can help reduce the risks, but tread lightly, because your employee’s post–no matter how irritating–could be legally protected.