I recently learned one of my employees described me on his Facebook page as the worst supervisor he’s ever worked for. According to my source, the employee also said he wanted to dissect me like a frog to find out whether I have a heart.
I called our corporate HR officer and said I didn’t want this employee in my department or our company. She said the employee had the right to post what he wanted to if he did it on his own time and computer. She said the employee has National Labor Relations Act protection for what he posts and if we fire him, he can sue for retaliation. Is that accurate? Don’t I have any rights? What should I do?
If you fire this employee for his post, he can sue or bring the matter before a regulatory agency. That doesn’t mean he automatically wins.
On April 12th, a regulatory agency ruled against an employee who made a similarly threatening post. Assistant Manager Shannon Cummins posted she would have “sliced” her supervisor’s “throat open” if their heated argument had occurred after work instead of during the workday. When Cummins filed for unemployment benefits, she contended her post was not disqualifying misconduct because it occurred on her own time and was a hypothetical and not an actual threat. A three-judge appeals panels rejected her contention and ruled that “there is no requirement that an employee’s misconduct must occur on the employer’s premises or while the employee is on duty to be considered work-related.”
The appellate panel also ruled that Cummins’ post constituted a threat because she expressed her intent to cause harm even though it was “hypothetical.” [Cummins v. Unemployment Comp. Bd. of Review, April 12, 2019).
Your HR official is correct that the National Labor Relations Act protects every employee’s right to voice concerns about pay, safety, working conditions or when questioning a supervisor related to company policy. The Act protects employees engaged in “concerted activity,” i.e., when they speak or post for the benefit or on behalf of others.
Not all of an employee’s online activity, even when it addresses workplace matters, comprises protected activity. Employees don’t have free rein to air their grievances. Protected activity doesn’t include personal venting when the employee isn’t contemplating group action. Employees lose NLRA protection when they engage in sabotage, malicious behavior, or disclose trade secrets.
Employers can terminate employees whose social media posts violate legitimate employer policies; divulge confidential information; threaten or harass others; contain discriminatory material or constitute hate speech. Employers can fire employees when the employees post information on social media that proves the employee lied, such as when the employee takes medical or disability-related leave for a bogus reason.
When deciding whether the employee deserves NLRA protection, the National Labor Relations Board assesses the employee’s goal for posting their comments; whether their Facebook posts mention the terms or conditions of employment, and the extent to which other employees participate in the conversation.
Here’s what you can do. Obtain and preserve a copy of the post in case your employee deletes it. Find out whether your employee was sounding off or interacting with his coworkers on his Facebook page. Once you’ve got the facts, take the issue to your chief executive officer. While the NLRA prohibits employers from taking action against employees acting together to improve their wages, hours and/or conditions of employment, this post appears to be personal venting and contains a threat. Yes, your employee is protected, but so are you.
© 2020, Lynne Curry
Lynne Curry, Ph.D., SPHR authored “Solutions” and “Beating the Workplace Bully.” Send your questions to her at firstname.lastname@example.org or follow her twitter @lynnecurry10.