An administrative law judge of the National Labor Relations Board (NLRB) has required a restaurant to rehire and pay back wages to an employee who was fired for violating the restaurant’s social media policy. The employee, a veteran who allegedly suffered from post-traumatic stress disorder (PTSD), tweeted about—
- The restaurant’s requiring employees to work on snow days.
- The rate of pay for employees.
- The restaurant’s practice of charging extra for guacamole when its competitor did not.
The employee had also circulated a petition among fellow employees about how the restaurant should allow its employees to take breaks required by state law.
Legal basis for NLRB involvement
The National Labor Relations Act (NLRA) prohibits work rules that chill employees in the exercise of their rights under Section 7 of the NLRA. Section 7 allows employees to participate in protected concerted activities; that is, the right to act together to try to improve pay and working conditions, regardless of whether or not they belong to a union. Employees cannot be fired, suspended, or otherwise penalized for taking part in protected group activity. The NLRA clearly prohibits work rules that overtly restrict protected concerted activities, but a work rule can still violate Section 7 if it chills employee participation in protected concerted activities. Under the NLRA, the chilling effect is said to occur if at least one of the following is true:
- Employees can reasonably construe a work rule’s language to prohibit such protected activities.
- The rule is promulgated in response to union activity.
- The rule is applied to restrict such activities.
How did the restaurant react?
When the restaurant, part of a national chain, found out about the tweets, the restaurant manager asked the employee to delete them. The manager also asked the employee to stop circulating his petition about breaks. During the discussion of these matters, the manager and the employee had a confrontation in which the employee allegedly pointed his finger at the manager, leaned toward the manager, and raised his voice. The manager then fired the employee for insubordination. The manager also indicated that she feared he might become violent because of his PTSD.
What did the restaurant do wrong?
In reaching a decision, the administrative law judge provided a laundry list of employment law mistakes:
1. The restaurant’s social media policy was too broad because it prohibited disparaging, false, or misleading statements about the restaurant and its employees, suppliers, customers, competition, and investors. The judge indicated that employers may only prohibit malicious statements, made with the knowledge they were untrue or with a reckless disregard for whether they were true.
2. The restaurant asked the employee to delete the tweets. Even though the employee did not tweet about a current employment dispute nor necessarily attempt to communicate to fellow employees, the tweets could have been his initiation of such actions and were therefore protected by the NLRA.
3. The restaurant asked the employee to stop circulating a petition among coworkers. This was perhaps the clearest violation of the NLRA.
4. The restaurant terminated the employee, allegedly for insubordination. Although there was a confrontation, some leeway is provided to employees in discussions with management, especially when an outburst is provoked by an unfair labor practice. Such protected speech remains protected unless it is so violent or so serious that it makes the employee unfit for further service. The administrative law judge did not believe the manager’s justification for termination, probably in view of her positive performance appraisal of the previous year. (The performance appraisal indicated the manager was considering him for promotion to kitchen manager.) In addition, the judge observed that a raised voice or a pointed finger did not indicate an assault was likely. Furthermore, the judge observed that the employee did not curse at the manager nor behave in other misconduct, even though did argue with the manager about the breaks.
5. The restaurant also had overly broad policies about prohibiting solicitation (asking other employees to participate in approaching management about a work condition) on company property at any time, prohibiting the use of the employer’s name (often necessary for employees to protest common adverse work conditions), requiring “ethical communications,” and prohibiting political and religious discussions. The requirement for ethical communications prohibited exaggeration, guesswork, and derogatory characterizations of people. The judge concluded that a prohibition against exaggeration and guesswork can only apply to malicious exaggerations and guesswork. The prohibition against derogatory characterizations might chill discussions about supervisory or managerial decisions. The prohibition against political discussion was overly broad because it could prevent employees from discussing legislation to improve employee working conditions, candidate positions on work-related matters, increasing the minimum wage, right-to-work legislation, the benefits of unionization, and many similar subjects.
Social media policies must be carefully crafted to prevent running afoul of the NLRA. For an example of an acceptable social media policy, see the last one provided in this report by the general counsel of the NLRB.
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