Q: What workplace postings do I, as an employer, need to have?
A: The California Department of Industrial Relations and the United States Department of Labor require all employers to display certain notices in areas where employees frequently go and can easily read the information. You can download or order postings for free here. Be careful to look for and post both the California and federally required workplace postings.
It is recommended that you periodically update your workplace postings as they are frequently updated. Changes have occurred in 2011, so if you have not updated yours this year, follow the link above to get in compliance!
Q: Can an employer terminate an employee based on their social media posts?
A: Yes, and No.
While many states, including California, are "at-will" employment states, and while some employee posts may be disparaging or derisive to their employers, terminating an employee for such posts may violate provisions of the National Labor Relations Act (NLRA), even in the absence of an employee union. Sections 7 and 8 of the NLRA outline specific protected employee conduct and prohibited employer actions that would interfere with such conduct. While not specifically drafted to include online speech, the National Labor Relations Board (NLRB) has interpreted these provisions to cover Facebook status updates, tweets on Twitter, and even private blogs.
In general, Sections 7 and 8 of the NLRA prohibit an employer from taking action against an employee who is engaged in "concerted activities," which include soliciting co-workers to start/join a union, discussing adverse working conditions or unfair labor practices, or otherwise bringing to light employer behavior against the public interests. "Concerted activity" occurs when an employee is engaged with coworkers, and not acting solely by and on behalf of himself. Concerted activity also includes "circumstances where individual employees seek to initiate or to induce or to prepare for group action" and where individual employees bring "truly group complaints" to management's attention. This protection afforded to an employee may be stripped where the content of the speech is particularly egregious or interferes in some way with the ordinary operations of an employer's business. This limitation, however, has been narrowly construed and it may be best to err on the side of caution when an employee's speech can arguably be considered "concerted activity."
Consider the following examples:
An employee who was terminated for asking coworkers on Facebook whether they agreed with her assessment that one of their coworkers was performing poorly was determined to be engaged in concerted activities. Management terminated the employee for what it considered "cyber-bullying" and harassing behavior, but the NLRB found the fact that the post was made to solicit information for a meeting with management regarding the coworker who was the subject of the post to be dispositive for a determination of concerted behavior.
An employer who terminated an employee for posting photos of an automotive sales event with comments criticizing the management's choice of refreshments was found to be in violation of the NLRA. While the employer argued that the photos and negative comments were disruptive to its business, the NLRB found evidence that the employee who posted the photos and comments on his personal Facebook account was actually posting representative comments that were shared among the employee's coworkers and thus constituted concerted activity.
An employee who was found to have posted offensive and inappropriate comments on his Twitter account was not engaging in concerted activity because his comments did not relate to his employer's business or specific employment practices and because he was not representing the shared sentiment of his coworkers.
An employee who was terminated for disparaging his employer's clientele and for revealing confidential accounting practices of the company was not protected by Sections 7 and 8 of the NLRA. The employee revealed the information during a discussion with a non-employee via Facebook. Although the posts did address the employee's job, and some of his coworkers were "friends" and thus able to view the post, none of those coworkers responded and the content of the discussion was considered a personal gripe and therefore not protected.
When determining whether an employee's conduct is actionable, it is worth noting that the response of other employees may be as important as the actual content of the post. If one employee were to post content that would be considered a personal gripe but receives responses from other employees who share in the sentiment, it is possible to find concerted activity among the employees. Ultimately, it is important to thoroughly analyze the content, the forum, and the response to any employee posting before deciding whether to discipline or fire that employee.