The legal issues surrounding the interplay between employment and private social media engagement is continually evolving. In view of some of recent developments, we are revisiting the issue and examining recent case law on the subject. 
Is it legal to regulate workers’ social media use?
Recently, I’ve been asked by several HR professionals whether employees’ private use of social media is something an employer has any control over. Although we’ve covered this topic in the past, it’s worth revisiting in order to dispel the fairly common misconception that employers are powerless to protect themselves against potentially devastating business problems caused by employees who either fail to see the gravity of their social media activity or erroneously believe they are free to post anything and everything on their own social media pages.
As with most workplace issues, regulation of employees’ private social media use is a topic that warrants a proactive rather than a reactive approach. In a 2014 case, Talbot v. Desert View Care Center, the Idaho Supreme Court found that a well-crafted social media policy could set a standard of conduct that if breached would provide adequate cause for termination and denial of unemployment benefits. Although the court wasn’t directly asked to decide whether social media policies are enforceable with regard to employees’ posts during nonworking hours, its decision to deny unemployment benefits based on an employee’s social media activity at home necessarily implies that such policies are enforceable.
Employees are a company’s most identifiable ambassadors to the public. That means an employee’s social media activity, both at home and on the job, creates a lens through which the public can gain both positive and negative insight about the company, including how it treats its employees, the quality of the products or services it sells, and the attitudes of employees as they relate to their work, the management, and the company as a whole. There’s an immense amount of opportunity for a company to benefit from its employees’ use of social media. Of course, the other side of that coin is that there’s an immense amount of opportunity for a business to be harmed when employees sound off on social media. An effective social media policy should therefore be tailored to reflect the interests and values of the company.
Businesses should invest the time to strategize, in conjunction with HR professionals and legal counsel, the best policy for their individual needs. For some companies, that may mean encouraging positive social media use that helps develop the brand, promotes collaboration with industry partners, and otherwise demonstrates their dynamic Web presence. For others, it may mean placing varying degrees of restrictions on social media activity, to the point of prohibiting people from identifying themselves as employees of the company on any social media platform. It may even make sense to have multiple social media policies for different departments or jobs.
As social media use continues to take precedence in many people’s daily interactions, be it on Facebook, Twitter, Instagram, or any other platform, there has been a permanent shift in the way we typically communicate with family, friends, coworkers, and the general public. Businesses must recognize that shift and make an informed decision about how to use (or limit) employees’ social media activity to protect their best interests. As a recent decision from the U.S. 2nd Circuit Court of Appeals illustrates, there’s at least one area in which you should proceed with great caution if you attempt to regulate employees’ social media use.
Are profane social media posts protected?
In April 2017, the 2nd Circuit issued a decision in National Labor Relations Board v. Pier Sixty, LLC, addressing the limits of protected social media activity in the context of the National Labor Relations Act (NLRA). Even if union activity is typically limited in your area, lessons from a federal circuit court’s decision are worthy of consideration. Whether employees are situated in New York or in Idaho, the provisions of the NLRA apply equally to activity protected under Section 7—i.e., “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The facts that led to this case—as you might imagine, given the context of this article—involve an angry employee, a Facebook post, and a subsequent adverse employment action by the employer. In 2011, employees at Pier Sixty, a catering company in New York, were exploring the prospect of unionizing, an idea that wasn’t well received by the company. The 2nd Circuit described it as a “tense organizing campaign that included threats from management that employees could be penalized or discharged for union activities,” conduct that indisputably violates the employee protections afforded by the NLRA.
In the subsequent action taken by the National Labor Relations Board (NLRB), Pier Sixty didn’t contest the NLRB’s charge that it had engaged in wrongful conduct in that sense. However, the employer did contest the Board’s determination that it had violated the provisions of the NLRA with respect to one employee’s conduct.
Hernan Perez was working as a server for Pier Sixty during the organizing campaign. Two days before employees were scheduled to vote on the union, he was working an event with one of his supervisors, Robert McSweeney. Upset by what he viewed as McSweeney’s continuation of the company’s practice of disrespecting its employees, Perez used his phone to post the following message on his Facebook page during his next authorized break:
Bob is such a NASTY MOTHER F____R! don’t know how to talk to people!!!! F___ his mother and his entire f___ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!
The post was available to Perez’s Facebook friends, which included 10 of his coworkers, and it was also available for public viewing. Pier Sixty’s management became aware of the post before he took it down. As a result, he was terminated.
Those facts perfectly frame the conflict between an employer’s interest in protecting itself by regulating potentially adverse social media exposure and its obligation to remain neutral to avoid interfering with employees’ protected rights under the NLRA. While businesses can and should establish social media policies, you must be careful not to impede the employee protections afforded by the NLRA, given the very nature of “social” media. Pier Sixty apparently had no social media policy in place, but Perez’s final comment encouraging his coworkers to “Vote YES for the UNION” brought the NLRA into play in ways that even the best social media policy might not be able to protect against.
In its defense against the ensuing action initiated by the NLRB, Pier Sixty argued that although Perez made a call to unionize at the end of his post, the rest of his message was so egregious that his NLRA rights were effectively nullified. Indeed, the 2nd Circuit observed, “Even an employee engaged in ostensibly protected activity may act in such an abusive manner that he loses the protections of the NLRA.” The question the court therefore had to answer was whether Perez’s conduct was so abusive, or so “opprobrious,” that the NLRA didn’t protect him.
Until the past couple of years, the test courts applied to evaluate whether an employee’s use of obscenities in the workplace warranted NLRA protection included four elements: (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practices. In Pier Sixty, however, the 2nd Circuit followed a more recent trend in case law that aims to give greater consideration to the employer’s interests in preventing employee outbursts in the presence of members of the public as well as guidance from the NLRB’s General Counsel on social media conduct.
The 2nd Circuit used a nine-factor “totality of the circumstances” test to evaluate Perez’s Facebook post. Under that test, the court examined:
- Whether there is evidence of antiunion hostility by the employer;
- Whether the conduct was provoked;
- Whether the conduct was impulsive or deliberate;
- The location of the conduct;
- The subject matter of the conduct;
- The nature of the conduct;
- Whether the employer considered similar conduct to be offensive;
- Whether the employer maintained a specific rule prohibiting the conduct at issue; and
- Whether the discipline imposed was typical for similar violations or proportionate to the offense.
Based on those nine factors, the 2nd Circuit decided that the protections of the NLRA extended to the content of Perez’s Facebook post.
According to the court, “Even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the subject matter of the message included workplace concerns” that arose in a highly hostile and antiunion workplace environment. Notably, the court didn’t identify any specific rule that prohibited Perez’s conduct, implying that Pier Sixty didn’t have a social media policy applicable to him. Although it’s probably impossible to craft a social media policy that can completely quash employees’ concerted activity online, a well-crafted policy would have put Pier Sixty in a better position to argue that it terminated Perez for a policy violation rather than for his union organizing.
Takeaway
The Pier Sixty case provides a very good example of the dangers involved when the employment relationship and online social media culture intersect. The legal parameters of employees’ social media use are so uncertain that even the courts are still attempting to navigate the issue in ways that sufficiently take into account the competing interests at stake. In any event, companies hoping to stay ahead of the curve would be wise to actively engage their HR professionals and legal counsel in an ongoing effort to ensure 
that company policy is up to date and provides the best protection possible under the prevailing laws and regulations.
Thomas J. Lloyd III is an attorney at Greener Burke Shoemaker Oberrecht, P.A. in Boise, Idaho. He can be reached at tlloyd@greenerlaw.com.
