If you are like most employers in America, your employees are using social media platforms such as Facebook, Twitter, and Instagram.
And if your employees are like most employees – from time-to-time they post comments about work.
What recourse do you have as their employer if your employees use social media to criticize your company and/or your managers/employees? Can those employees be terminated on the grounds that complaining on social media is analogous to screaming at a manager in public?
A recent decision in just such a case by the U.S. Court of Appeals for the Second Circuit is instructive here.
The case involved a Connecticut sports bar – Triple Play Sports Bar and Grille and two of their employees. One of those employees posted a Facebook post angrily accusing Triple Play of mismanaging payroll taxes. A second employee “Liked” the post. Both were fired by the company.
The National Labor Relations Board (NLRB) heard the case and ruled that the dismissals were unlawful because the employees were engaged in protected work related discussions. On appeal, the Court of Appeals agreed that the terminations were wrong.
In its defense, Triple Play had tried to rely on precedent set in a case involving Starbucks. In the Starbucks case, an employee publically confronted a supervisor in a profanity laced outburst in front of customers. That Starbucks employee was terminated for conduct detrimental to his place of business and that termination was upheld by the NLRB. Triple Play’s attorneys argued that the conduct of their two terminated employees closely approximated that of the dismissed Starbucks staffer. The appeals court, however, disagreed by reasoning that accepting such an argument “could lead to the undesirable result of chilling virtually all employee speech online…”
With social media, employers are facing new and complicated challenges that can lead to significant legal difficulties. If you need guidance navigating these waters, the partners at Kainen, Escalera & McHale can help. We are very carefully following developments in the law on these matters and would be pleased to help you if you have questions. Please contact us if we can help you.
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