Contributed by Brandon Anderson
As you may have gathered from the nearly monthly blogs on the issue (see blogs such as Friend Me?? and the three NLRB-related postings), labor and employment attorneys are fascinated and maybe slightly obsessed with the potential impact of social media on the employment relationship and labor and employment laws generally. As these prior posts have indicated, the hot-off-the-press news has focused on our state governments’ view that employers should not request access to job applicants’ social media websites and the federal government’s view, per the National Labor Relations Board (NLRB), that employers cannot have social media policies that restrict employees’ rights to engage in concerted activity. And due to these positions that our governments are taking, we have been advising employers that they need to have their social media policies reviewed by an attorney (and will continue to do so!).
In this climate where the barometer suggests an employer’s ability to rely on social media to get to know “the real applicant” or to ensure that an employee isn’t dragging an employer’s name through the mud might be limited, I read the following headline on MSNBC: “Bartender Fired Over Racist Facebook Post.” In a nutshell, the bartender posted blatantly racist and extremely offensive comments about bar patrons. The bartender was subsequently fired. The lawyer in me immediately wondered whether the bartender would sue. I then kicked a couple of theories around in my head. There is the “go-to” First Amendment right to free speech—sometimes people are surprised to learn that, to some extent, employees sacrifice this right when they enter into an employment relationship. A more “novel” theory might be whether the bartender’s rant could be considered “concerted activity”—the “I was just complaining about my job with my co-workers and that’s protected concerted activity” defense. This probably won’t pass the smell test either, especially if the employer maintained a social media policy that prohibited “Disparagement of any race, religion, gender, sexual orientation, disability or national origin.” As some of our blogs have indicated, the NLRB has indicated that such discriminatory activity can be prohibited and is not considered protected concerted activity.
In this day and age, it is critical that employers create and enforce a social media policy. As we blogged in January, February, March, and now in April, it is also critical that employers ensure that their policies are drafted in a way that will be best positioned to withstand the possible legal challenges. Remember, defending against a weak but “novel” legal theory still costs you time, effort, and money. As promised: employers really should consult with an attorney and have an attorney review their social media policies.