An employee’s tweet that your company’s holiday gift was cheap has gone viral and sparked public ridicule. What can you do?
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.