Monday, April 4, 2016

Bad Tweet – You’re Fired!

No, this is not a blog about Donald Trump and The Apprentice. It’s about free speech, company policies, labor laws and social media.
Companies are appropriately wary of how they are depicted in social media. They want five stars, to be “liked,” “friended,” and praised in image and word. Their brand “trumps” all. They hire PR firms, often dedicating substantial internal personnel to the effort, and expect their employees to mirror these efforts. Often, you will see in employee manuals presented to newbies on their first day of work that make it clear that depicting their boss or company negatively in social media constitutes grounds for termination. It matters that much, and indeed companies often implement a strategic firing to bring that point home to everyone.
Recently, Chipotle (which has such a corporate policy) fired a server in one of their Philadelphia restaurants for tweeting a negative comment about the company’s low wages. The discharged employee felt that Chipotle’s policies just plain went too far and filed a grievance with the National Labor Relations Board seeking reinstatement and back pay. So just on the common sense merits, how would you rule if you had to resolve such a dispute?
“Social media rules at Chipotle that banned such critical comments violated the National Labor Relations Act, found the judge, who also is requiring the company to post signs acknowledging their error… Plaintiff James Kennedy, who is now working for an airline in a union job at Philadelphia International Airport told the Inquirer he is very happy with his new position, which he got about a month after being fired by Chipotle. He also said he would be happy to accept food vouchers from Chipotle for some of the damages he is due… ‘You cannot deny that their food is delicious,’ he told the newspaper, ‘but their labor policies were atrocious.’” American Bar Assn Journal, March 16th.
Is case this dispositive? Can employees say anything they like, short of actionable defamation, against their employers? Are there limits? Is there a balancing act between a senior manager making such a social media remark and an ordinary employee? After all, the NRLB treats managers and their charges quite differently. How about companies that are not engaged in interstate commerce? How far do NLRB rules apply?
In the end, the NLRB has sent a signal, loud and clear, that employers simply cannot rein in their workers and their ability to speak on social media, no matter how consistent with brand-protecting corporate policies. You can expect state regulators, faced with the same regulatory issues, to be severely influenced by NLRB rulings.
If you are an employer, and if you have social media policies, now is a very good time to take a look at those rules and discuss them with a competent labor lawyer. Otherwise, you may face a very big invoice for back wages, not to mention lots of legal fees along the way, from an employee discharged for a bad tweet. But for employees, it just might be a mistake to assume you can say anything at all against your employer without risk. This was not a First Amendment case; it was not rooted in free speech. This, simply, is labor law… and there probably are limits.
I’m Peter Dekom, and running a company requires constantly keeping up with changes in employment mandates and practices.

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