Construction products giant Fastenal recently encountered this dilemma when a branch manager in Canada got fired up over what he felt was a stingy holiday gift from the company.  He posted this message on Twitter that got picked up by a local news outlet:

What kind of multi billion company gifts its Canadian employees barbecue sauce as a holiday gift? Yet the USA employees stuff their face with an actual holiday giftbox? @FastenalCompany @FastenalCanada.

(In fairness, the gift was a bottle of barbeque sauce AND a wooden grill scraper, and they have more than 21,000 employee on their holiday gift list.)

Company Gets Grilled Over its Decision

When the Human Resources Department was consulted, they recommended that the employee be terminated for breaching Fastenal’s standards of conduct policy. That just fanned the flames all the more as the company’s actions were roasted online and customers began threatening to withhold their business.

Fastenal’s CEO subsequently acknowledged that the company’s response to the tweet may have been a bit overdone but noted their actions were entirely lawful.  He added that the gifts given to Canadian and American workers were equal in value and that perhaps, as a manager, the employee should have known better and understood his obligations under the policy.

Although this happened in Canada, would an American worker have greater legal protection tweeting out his claim that his employer was a modern-day Scrooge?  Probably not. A public employee might be able to invoke the constitutional right of free speech in certain instances but otherwise, in the absence of contractual restrictions on termination, employees generally are not legally protected from their employers’ adverse reactions to off-duty statements or behaviors.

A Meaty Issue Under Labor Law

The one area of law that might be implicated by these actions is that of protected concerted activity under the National Labor Relations Act (NLRA).  While the employee in this instance was a manager and thus not covered by the NLRA, a rank and file employee is protected from adverse employment action if acting in concert with other employees for their mutual aid and protection.  This can be true even where the employee is acting alone if the employee is intending to induce other employees into some sort of group action regarding their working conditions.

On the other hand, if the employee is just complaining in his or her own self-interest, or is just griping about something without any real intent to band together with colleagues over the issue, such action likely would not be viewed as legally protected.

This sort of problem can flare up in an instant. Gripes that used to be shared among only a few colleagues at the bar after work are now aired via Twitter, Facebook, et al. to a multitude of followers, and perhaps many thousands more readers if the post goes viral.  Therefore, it is advisable to maintain a reasonable social media policy that gives fair warning to employees regarding what they can and cannot do online.

The National Labor Relations Board (NLRB) has recently modified and loosened its position on workplace social media polices, calling for a balancing of employee rights to engage in concerted activities versus protection of legitimate employer interests.  To be sure that such a policy is properly drafted and not unlawfully broad, employers should consult with legal counsel.

Bottom Line

Regardless of what you think about the company’s gift to their workers, it is clear that the advent of social media has “raised the steaks” for employers hoping to control the impact of employee complaints.

The post Employee Gets Burned for Tweeting His Beef About Company’s Holiday Gift appeared first on Felhaber Larson.

According to reports, the officer posted that the protesters on the Lake Street Bridge connecting the two Twin Cities should have been run over, called the protestors “idiots,” and encouraged those on the road not to slow down.  After receiving complaints about the post, the St. Paul Police investigated and placed the officer on leave.

As we wrote recently in “Employee’s Racist Post Means His Job is Toast”, an employee’s comments on social media may have consequences for his or her employment even if the behavior took place outside of work.  In the case of a police officer, however, the matter is a bit more complex since like other public employees, police are subject to the protections of the First Amendment relating to free speech.

How Free is our Speech?

Even so, a public employee’s free speech rights are not absolute. The United States Supreme Court in a case entitled Connick v. Myers ruled that for a public employee to establish that his or her First Amendment rights were violated by a reprimand or termination, the employee must establish (1)  that the speech addressed a matter of public concern, and (2) the employee’s free speech interests outweigh the employer’s efficiency interests.

A “matter of public concern” is one that “relates to any matter of political, social, or other concern to the community.”  Essentially, the question is whether the employee is speaking as an employee or as a private citizen.  If it is the latter, the employee’s speech is likely to fall outside the protection of the First Amendment.

The evaluation of the employer’s efficiency interests tends to focus on the need for a disruption-free work place. Important factors include whether the speech:

• impairs discipline or harmony among co-workers;
• has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary; or
• interferes with the normal operation of the employer’s business.

How does the police officer’s statement suggesting that protesters be run down in the street stack up against these criteria? Until there is an official legal determination, we will let you be the judge.

Bottom Line:

In many respects, this issue is not much different than it has been for many years.  Employees have always been subject to reprimand and even termination for inappropriate statements, even if they were made outside of work.  The big difference in the social media age is that (1) such statements can be broadcast to a much larger audience; and (2) they are more provable since they can be reposted, downloaded or printed.

In the case of this particular police officer, it remains to be seen whether his First Amendment rights will protect him from otherwise being (quite ironically) thrown under the bus.

The post Cop’s Facebook Rant May Be His Ticket Off the Force appeared first on Felhaber Larson.

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.

Bottom Line

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.

The post Employee’s Racist Post Means His Job is Toast appeared first on Felhaber Larson.

Fired Over Facebook Comments

In January 2011, at least two current and former employees of the Triple Play Sports Bar learned that they owed more in state income tax than they had expected. One former employee speculated on herFacebook page that this happened because the bar owner allegedly failed to properly complete tax paperwork. She wrote: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!” Vincent Spinella, a current employee, clicked the “Like” button on the post. Several other current and former employees responded with their own comments, including Jillian Sanzone, a bartender, who wrote: “I owe too. Such an a[**]hole.” The bar’s owner fired Sanzone and Spinella for their Facebook activity soon after discovering it.

The employees took their case to the National Labor Relations Board (NLRB), alleging that the bar’s owner violated their rights under the National Labor Relations Act (NLRA) to act collectively “to improve terms and conditions of employment or otherwise improve their lot as employees.” The NLRB ruled in favor of the employees, and the Second Circuit upheld that decision on appeal, ruling that their right to act together to improve their employment includes the right to use social media to communicate with one another or the public for that purpose.

Are Facebook posts protected concerted activity?

When an employee is terminated over their public comments, a court is forced to engage in a balancing act—the employees’ rights to act collectively to pursue improvements to their working conditions must be weighed against the employer’s interest in preventing disparagement of its products or services. How do we know which one weighs more heavily?

The nature of the discussion matters. In this case, the employees were found to be engaged in concerted action because the comments involved current employees and were “part of an ongoing sequence of discussions that began in the workplace about [the bar’s] calculation of employees’ tax withholding.” The Facebook discussion was protected because the topics included withholding and possibly being owed back wages, which can fairly be considered terms and conditions of employment. Also key to the Court’s reasoning was that although the discussion among employees was public and viewable by customers, there was no evidence that the discussion was targeted at customers. Moreover, although the alleged reason for the tax liability may have been inaccurate, the statements were not made maliciously, but as part of a good faith discussion of working conditions.

Wait . . . is “Liking” a Facebook post concerted activity?

Does the simple act of clicking the “Like” button on a message typed by another person rise to the level of engaging in a discussion to improve the terms and conditions of employment? Both the NLRB and the Appeals Court said yes. While a “Like” is somewhat ambiguous, in the context of an ongoing dialogue among employees about tax withholding Spinella’s “Like” was construed as an expression of approval of the initial post by the former employee.

Bottom Line

Employees are not unconditionally entitled to communicate messages with the public that are disloyal or defamatory to their employer. Employers should recognize, however, that online discussions about the employees’ terms and conditions of employment might be protected even where they contain profanity, are negative toward the employer, or possibly inaccurate.

Employers can protect themselves by implementing clearly worded social media policies that cannot be construed to prohibit employees from discussing the terms and conditions of their employment.

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