A Mankato man accused of sending racist messages to a Black Lives Matter Facebook page recently lost his job after his employer investigated the employee’s comments. As reported in the Minneapolis Star Tribune, employee Brad Schultz used a racial epithet, told the group to “get out of town with your [expletive] protesting,” and that they should “just leave, white people don’t like you.”
After screen shots of Mr. Schultz’s comments were publicly circulated, the Company, Archer Daniels Midland, (“ADM”) investigated and then issued a statement explaining that Schultz no longer worked for ADM. It did not say whether he resigned or was terminated.
“These remarks are unacceptable and do not reflect ADM’s values,” the statement said.
This incident is a reminder of the potential pitfalls of social media – for both employees and employers alike. With 65 percent of American adults using social networking sites, social media is a significant presence both on and off the job. As a result, people should anticipate being held more accountable when their behavior on social media is offensive.
While employees may consider their opinions on social media to be part of their “private lives,” the spread of social media and the public nature of online comments means that employers often become responsive to conduct of which they otherwise would be unaware.
It is critical to remember that employees do not have a First Amendment right to free speech or free expression at a private employer. In most states, like Minnesota, employment is at-will. Therefore, if an employer determines that an employee’s speech—whether at work or online—runs counter to the company’s values or image, the employee may be terminated.
This does not mean, however, that an employer has the right to control everything that an employee says at work or posts online or discipline employees for their remarks. Employees’ discussions—online or otherwise—about their terms and conditions of employment are protected speech.
The National Labor Relations Act (“NLRA”) protects the rights of employees to act together, or collectively, to address and improve their conditions at work. This protection applies regardless of whether the employees are represented by a union. In a string of decisions over the past few years, the National Labor Relations Board (“NLRB”) has made clear that this protection for “protected concerted activity” extends to work-related conversations conducted on social media.
An employee who complains about her boss online, for example, is most likely engaging in protected conduct. So are employees who take to social media to gripe about their wages or their work conditions. An employer that disciplines its employees for social media activity that can be construed as protected concerted activity likely will be found in violation of the NLRA.
For example, a sports bar fired two employees who complained on Facebook that they owed higher state income taxes than they expected. Co-workers “liked” one of the postings, and another wrote about the bar owner: “I owe too. Such an a[**]hole.” The bar owner fired two employees for the complaints, but the NLRB ruled in favor of the employees as being wrongfully terminated, and the Second Circuit upheld that decision on appeal.
In addition, any company policy that prevents employees from discussing the terms and conditions of their employment (such as wages, hours, or personnel issues) or that would reasonably be understood by employees to prohibit protected activity, is unlawful. However, employers can maintain and enforce codes of conduct or anti-discrimination and anti-harassment policies that narrowly prohibit employees from engaging in discrimination, harassment, hostility on account of race, sex, religion , age, ethnicity, nationality or other protected status.
And employers can apply those anti-discriminatory policies to online conduct, as was likely the case in the ADM instance.
The NRLB has explained, in general terms, its position as follows:
- Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
- An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
Employers may narrowly prohibit discrimination, harassment, threats of violence or other similarly inappropriate comments online, and may terminate those employees whose online conduct violates the employer’s values and mission.
Employers must be wary of disciplining employees for online posts or discussions about the employees’ terms and conditions of employment—even when the posts contain profanity, are negative toward the employer, or possibly inaccurate.