Written by Jamie L Riley & John Ashby of Hawley Troxel
Social media usage and engagement are at an all-time high. Between Instagram, Facebook, and Twitter, most employees engage in at least some social media use. Indeed, most companies even have social media profiles used for marketing. While social media can be a positive tool for connecting with other people, advertising, and marketing services, it also serves as a platform on which people often express their #unfiltered thoughts. Because of the widespread use of social media, the opportunities for an employee to express their thoughts regarding their employer, and more importantly grievances, is almost limitless. So, when can an employer take adverse action, or even terminate an employee, based on social media posts? The answer largely depends on if the posts fall within the scope of the National Labor Relations Act (NLRA).
The NLRA guarantees employees the right to unionize and to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Protected concerted activity allows employees to act together to try to improve their pay and working conditions. The National Labor Relations Board (NLRB) states that employees have the right to use social media to share information about pay, benefits, and working conditions with coworkers but that individually complaining about some aspect of work does not rise to “concerted activity” absent some relation to group action. The NLRB also indicates that social media posts about an employer are not protected when they are egregiously offensive, knowingly or deliberately false, or if it publicly degrades the employer’s products or service unrelated to any labor controversy.
With social media still being relatively new, the case law addressing when an employer can fire someone over social media posts is still being developed. One recent case, however, upheld an employer’s firing of an employee based on a Facebook post. In Cummins v. Unemployment Comp. Bd. of Review, an employee got into a confrontation with a supervisor at work and later posted on Facebook that she would have “sliced his throat open if it didn’t happen at work.” No. 1944 C.D. 2017, 2019 WL 1574856, at *1 (Pa. Commw. Ct. Apr. 12, 2019). The employee was later terminated and appealed the denial of her unemployment benefits. Id. In affirming the decision, the appellate court indicated that the Facebook post constituted a threat and it did not matter that it was posted while the employee was not at work. Id. at 4-5. The court noted that the threat was “sufficiently connected” to the employee’s work so as to constitute willful misconduct. Id. at *5. The Cummins case is just one example of the courts weighing in on social media in the employment law arena. Employers can expect this to be a developing area of the law and should consult their social media policies from time-to-time and update them as needed.