by Adam P. Boyd
The Idaho Supreme Court recently released a decisions related to discharge for employment-related misconduct, ruling that the employee was ineligible for unemployment benefits because he was fired for employment-related misconduct. In Talbot v. Desert View Care Center, the employee failed to abide by the employer’s social media policy. Although many employment lessons can be gleaned from the decision, this cases clearly illustrate that employers (at least in Idaho) have a right to expect employees to live up to a reasonable standard of behavior. This article will focus on how the growing issue of social media impacts the workplace as well as some recent decisions by the National Labor Relations Board (NLRB) relating to social media policies. 
Why having a social media policy matters
On February 2, 2013, Joseph Talbot was discharged from his position as a nurse at Desert View Care Center because he posted comments on Facebook that Desert View deemed a violation of its “Social and Electronic Media Conduct Policy.” After a shift in January 2013, Talbot posted the following remarks on Facebook:
Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.
A nursing professor who was Talbot’s Facebook friend saw the post and e-mailed Desert View the next day to express her concerns about resident safety. Talbot said he was merely frustrated and was privately venting to friends.
Desert View’s social media policy states that employees are “to treat physicians, providers, vendors, conservators, regulators, competitors, fellow employees, managers, and the family members of our patients with respect electronically, as well as in-person.” Additionally, according to the policy, “employees will at all times avoid slanderous, vulgar, obscene, intimidating, threatening or other ‘bullying’ behavior electronically towards any of the groups identified above or towards other facility stakeholders.” Talbot stated that he never read the social media policy, but he acknowledged receiving it and agreeing to its requirements when he signed for his paycheck on September 10, 2012. Following his discharge, he submitted a claim for unemployment benefits.
The Idaho Department of Labor (IDOL) initially denied Talbot unemployment benefits because Desert View discharged him for violating its social media policy. Talbot appealed, and an IDOL appeals examiner found that he “would never harm a patient. He was venting.” The appeals examiner also found that the policy was “vague in regards to [Facebook].” The IDOL concluded that Desert View didn’t discharge Talbot for employment-related misconduct, reversed the eligibility denial, and allowed him to receive unemployment benefits.
Desert View appealed the IDOL’s decision to the Idaho Industrial Commission. The commission conducted a review of the record, relied on an audio recording of the IDOL hearing, and reviewed exhibits admitted during the IDOL hearing. The commission then adopted the appeals examiner’s findings of fact.
The commission found that under the standards of behavior test, Desert View had communicated its social media policy to Talbot and his conduct violated the policy’s standards. Thus, the commission concluded that Desert View had discharged Talbot for employment-related misconduct. The commission then reversed the IDOL’s decision and denied unemployment benefits. Talbot appealed to the Idaho Supreme Court.
The Idaho Supreme Court held that Talbot’s signed acknowledgment that he had received and agreed to the social media policy was evidence that Desert View had communicated its policy to him. The court also held that although Talbot’s view of his Facebook post is plausible, the fact that the post fell below the subjective expectations the employer established in its policy was enough to support his termination.
If Desert View hadn’t put an established social media policy in place and communicated the policy to its employees, it would have been unable to demonstrate that it terminated Talbot for misconduct, and he would have been entitled to unemployment benefits. Moreover, the policy allowed Desert View to act quickly and capably when it was faced with a potentially embarrassing and harmful situation because one of its employees carelessly posted something on social media.
A survey by the law firm Proskauer Rose found that employers have increasingly been forced to rely on social media policies to combat certain employee behavior. Eighty percent of employers found that employees were misusing confidential information on social media, 71% had employees misrepresenting the views of the business, 67% found inappropriate nonbusiness use of company resources, 64% discovered disparaging remarks about the business or employees, and 64% had employees harassing others while on an account associated with their employer. However, companies must be careful when drafting social media policies and keep recent holdings by the NLRB in mind.
Recent NLRB decisions limit employer actions
Over the past three years, the NLRB has begun to heavily scrutinize employer social media policies it finds overly broad and an infringement on federal protections for employees. The NLRB’s stance on social media has crystallized over time: Social media sites are “virtual watercoolers,” and employees may discuss on social media sites whatever they have a right to discuss in the workplace—including any subject that falls within the definition of “terms and conditions of employment.” That position and several of the more prominent cases the NLRB has decided help establish what companies can and cannot terminate employees for doing on social media.
In Karl Knauz Motors, Inc. d/b/a/ Knauz BMW v. Robert Becker, a former salesman for a suburban Chicago auto dealership wrote two Facebook posts about his employer. First, the employee, Robert Becker, mocked the company for serving cheap food at an event where it served hot dogs. “I was happy to see that Knauz went ‘All Out’ for the most important launch of a new BMW in years,” he posted. In the comments section of his post, he also mentioned to other Knauz salesmen that the cheap food might damage their sales commissions. Second, after an employee at Knauz’s next-door Land Rover dealership let a child sit in the driver’s seat of a car and the child accidentally drove it into a pond, he posted pictures of the accident with the caption “This is your car: This is your car on drugs.”
A week later, the dealer fired Becker for his posts. The NLRB filed a complaint on his behalf, claiming his posts were “protected concerted activity.” The administrative law judge (ALJ) held that the post about the customer event was protected because it addressed working conditions (commissions), but the post about the car accident wasn’t protected because it didn’t discuss the terms and conditions of his employment. The ALJ upheld the company’s decision to fire him.
In a more recent case, NLRB v. Triple Play Sports Bar, the Board found that an employee’s “Like” on a Facebook post was protected, reversed the employee’s firing, and found a key provision in the employer’s social media policy unlawfully overbroad. In the case, several former employees of a sports bar were commiserating about a mistake they suspected the bar’s owners were making when calculating their state tax withholdings. A current employee sympathized by clicking the “Like” option under the initial post. After learning about the post, the sports bar terminated the employee for “disparaging and defamatory comments.”
The NLRB held that because the employee did not specifically “Like” any of the defamatory comments in and of themselves but instead agreed with comments about an ongoing labor dispute, his “Like” was protected activity. The Board also held the following portion of the sports bar’s social media policy was too broad:
When Internet blogging, chat room discussions . . . or other forms of communication extend to employees . . . engaging in inappropriate discussions about the company, management, and/or [coworkers], the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. . . . In the event state or federal law precludes this policy, then it is of no force or effect.
In light of the NLRB’s rulings on social media issues, you must be cognizant of what your social media policies may and may not prohibit when you’re attempting to control your employees’ online posts.
Best practices
The recent Idaho Supreme Court holding and NLRB decisions have provided a fairly clear blueprint for employers to follow when crafting an effective and legal social media policy. As an employer, you must balance your business needs against employees’ freedom to engage in personal pursuits. And depending on your industry, you may face unique challenges. For example, a technology company may be worried about protecting confidential information, while a medical practice is trying to maintain patient confidentiality.
Social media can have many benefits, such as increasing brand awareness, building and developing client relationships, and increasing visitors to your website. However, it can also expose you to liability for employees’ actions during the course and scope of their employment. Some general things to remember when you’re drafting a good social media policy include the following:
- Don’t prohibit protected concerted activity. Under the National Labor Relations Act (NLRA), employees have the right to post or engage in conversations on social media sites about wages, hours, working conditions, and similar subjects. A social media policy should indicate that protected speech cannot be censored by the employer. The NLRB continues to scrutinize social media policies closely, and language that’s too general or subjective will raise a red flag.
- Personal complaints and offensive remarks aren’t protected. Make it clear that legally protected activity doesn’t include personal complaints or gripes, nor does it protect an employee’s offensive, demeaning, defamatory, abusive, or inappropriate remarks.
- Be specific. A poorly drafted, overly broad policy could leave you open to liability for potentially violating employee rights.
- Requiring your employees to post disclaimers is acceptable. Employers can require employees to include disclaimers on their social media posts or profiles. “The postings on this site are my own and do not represent my employer’s positions, strategies, or opinions” is one example.
- Prevent bullying, discrimination, and harassment. Social media can become a forum for supervisors’ or employees’ inappropriate, unwelcome remarks about coworkers. Be clear in your social media policy that this type of behavior will not be tolerated.
- Be careful about what gets posted about the company. Blogs and social media website postings may be reviewed, copied, and disseminated by others, including your competitors. Facebook, LinkedIn, and Twitter are all effective means for a company to share exciting news or to spread brand awareness, but it’s important to monitor what’s being put out there about your company.
- Protect confidential trade secrets. This warning speaks for itself: Don’t allow employees to disseminate confidential or proprietary information about your company, its products, or its customers.
- Educate and enforce. Educate your workforce, and make your policy readily available. Then monitor and enforce the policy, and update it regularly as new social media platforms become available or additional guidance is handed down by the NLRB or the state courts.
Adam P. Boyd is an associate in the Boise office of Greener Burke Shoemaker Oberrecht, P.A. He may be contacted at aboyd@greenerlaw.com.