Employment Law Daily NLRB: Firing employee for breach of overbroad social media policy violates NLRA
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Tuesday, August 1, 2017

NLRB: Firing employee for breach of overbroad social media policy violates NLRA

By Ronald Miller, J.D.

When it discharged an employee because of comments he posted on Facebook in response to a coworker’s complaint that she had been unjustly terminated, an employer violated the NLRA, ruled a divided three-member panel of the NLRB. Applying the analytical framework established in Continental Group, Inc., which addresses discipline imposed under an unlawfully overbroad rule, the Board further found that the employer violated the Act by discharging the employee pursuant to its unlawful overbroad social media policy. On the other hand, the employer did not act unlawfully by discharging a second employee under its unlawful social media policy, finding his posting to be maliciously false. Chairman Miscimarra filed a separate opinion concurring in part and dissenting in part (Butler Medical Transport, LLC, July 27, 2017).

The employer provides ambulance transportation to hospitals, nursing homes, and other organizations. Since November 2011, the employer distributed a pamphlet to new employees stating that they would refrain from using social networking sites that could discredit the employer or damage its image. Multiple employees were disciplined or discharged for violations of the social media policy. In this case, two employees were discharged under the social media policy for posts they made on Facebook.

Social media post. The first employee, William Norvell, was an EMT and driver. When a former employee posted on Facebook about her termination, Norvell commented: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.” He further suggested, “You could contact the labor board too.” An anonymous source left a screen shot of this conversation on the desk of the HR director, who brought it to the attention of the chief operating officer. Norvell was terminated for violating the employer’s social media policy.

Concerted. Finding that Facebook posts are protected by Section 7, the Board concluded that the employer violated Section 8(a)(1) by discharging Norvell, agreeing with an administrative law judge that Facebook posts constitute concerted activity. Here, the employee engaged in a conversation with a fellow employee regarding her recent discharge and advised her of potential avenues of redress. Accordingly, he engaged in concerted activity when he offered advice to a former coworker regarding future action.

“Mutual aid or protection.” Additionally, the Board found that the Facebook posts were made for the purpose of mutual aid or protection. Norvell posted his comments as part of an online conversation with fellow employees, triggered by one employee’s complaint about what she believed was her unjust discharge. This was a potential concern for all employees, who have a common interest in job security and protection against such dismissal. By complaining, the coworker was at least implicitly soliciting support from her coworkers, and by advising her of potential avenues of redress, Norvell was “making common cause” with her and with other employees privy to the conversation. Thus, the Board rejected the employer’s contention that his conduct was not for the purpose of mutual aid or protection.

Overbroad rule. Alternatively, the General Counsel contended that the employee’s discharge violated Section 8(a)(1) because it was implemented under an unlawfully overbroad rule. In Continental Group, the Board held that discipline imposed under an unlawfully overbroad rule may violate Section 8(a)(1) in two situations: if the employee was disciplined for engaging either in protected activity, or for conduct that is not concerted, but “touched the concerns animating Section 7.” An employer can avoid liability by demonstrating that the employee’s conduct actually interfered with the employer’s operations and that interference, rather than the violation of the overbroad rule, was the reason for the discipline.

First concluding that Continental Group applied to this case, the Board found that the Facebook posts were protected concerted activity, or alternatively, that they touched the concerns animating Section 7. It was undisputed that Norvell was discharged for violating the social media policy. In response to the former employee’s complaint that she was unjustly fired, he suggested avenues for redress her discharge. This communication clearly implicated concerns underlying Section 7. And the employer did not introduce any evidence that Norvell’s posts interfered with its operations. As a result, the Board affirmed the ALJ’s additional finding that the employer unlawfully discharged him pursuant to its unlawful rule.

False Facebook post. A second employee, Michael Rice, posted derogatory remarks on Facebook about the employer’s maintenance of its vehicles, and again, an anonymous source left a screen shot under the door of the HR director. She showed the post to the chief operating officer, who conducted an investigation. Maintenance records showed that the employee’s vehicle had not broken down that day, so his post was false. He was discharged because his post violated the employer’s social media policy.

Rice’s Facebook post was not protected, the Board held. Otherwise protected communications “will lose the protections of the Act if maliciously false.” Here, the post was maliciously false. Maintenance records indicated that the employee’s vehicle did not break down on the day of his post. Assuming that he was referring to the employer’s ambulance, he posted the comment with knowledge of its falsity.

Applying Continental Group, the Board also determined that Rice’s discharge was lawful even though it was imposed pursuant to an unlawfully overbroad rule. His post did not “touch on the concerns animated by Section 7″ because, if it referred to his girlfriend’s car, it was not made for the purpose of mutual aid or protection, and the employer did not violate Section 8(a)(1) by discharging the employee.

Concurring in part and dissenting in part. Chairman Miscimarra agreed with the majority that Rice’s discharge did not violate Section 8(a)(1). His conclusion stemmed from the fact that Rice did not engage in conduct that was protected under Section 7. On the other hand, he would also find that Norvell’s discharge did not violate Section 8(a)(1) because, in Miscimarra’s view, Norvell’s actions were not “concerted” within the meaning of Section 7, making them not protected. Miscimarra disagreed with the Board’s rulings in Double Eagle Hotel & Casino and Continental Group regarding the imposition of discipline pursuant to an unlawfully broad rule, and he urged the Board to overrule them.

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