May 6, 2019
These days, keyboard warriors are taking to social media to dispense their own brands of internet justice. Most of the time, this practice is highly annoying but otherwise pretty harmless… Until a social-media shenanigan crosses the line, which can result in unintended consequences, even problems at work. In the digital age, where social justice is at our fingertips, employers and employees should understand their rights (or lack of) with respect to social media usage.
In Michigan, most employment relationships are “at will,” meaning that an employer can discipline or fire any employee for just about any reason so long as the reason isn’t an illegal one. With that in mind, the general rule is that an employer has broad discretion in deciding how (or if) to take action against an employee for social media usage. Even off-duty and off-premise posts can be punished.
In other words, the default rule is that a business can generally decide its own work rules and penalties for violations, even off-the-clock activity.
But despite the general trend favoring employers, there are laws on the books that check their unfettered use of discretion. Here are a few of those legal principles and how they relate to social media:
The National Labor Relations Act (NLRA), 29 USC §§157, 158(a)(1).
In Michigan, only around 14% of the workforce is unionized. So you might initially think that this doesn’t apply to you. Not so fast– the NLRA protections apply to almost all private-sector employees. Workers have the right to engage in concerted activity to improve wages, hours, and other working conditions. And workers can’t be disciplined or fired for taking part in those activities.
An infamous (and extreme) example of concerted social-media activity can be seen in the National Labor Relations Board (NLRB) case of Pier 60, LLC, 362 NLRB No. 59 (March 31, 2015).
In Pier 60, an employee was fed up with mistreatment at work from one particular supervisor, so he took to Facebook saying:
Bob is such a NASTY MOTHER F[*****] don’t
know how to talk to people!!!!!! F[***] his mother and
his entire f[***]ing family!!!! What a LOSER!!!! Vote
YES for the UNION!!!!!!!
The National Labor Relations Board found that the employee’s Facebook post was protected under the NLRA.
But don’t get the wrong idea. Just because someone includes, “Vote YES for the UNION” in a social media post, doesn’t mean that he or she has carte blache to say whatever nasty thing comes to mind. It will depend on the totality of the circumstances. But employers and employees should both be aware of the issue and should think twice before making a rash decision that could result in costly litigation.
The First Amendment
The First Amendment restricts the government in order to protect individual liberties. In a private sector employment relationship, there is no government actor. The employees of a private organization cannot rely on freedom of speech to prevent retaliation for social media posts.
Public employees, on the other hand, like firefighters, police officers, teachers, etc., do enjoy some First Amendment protections, but even their rights are more limited than your average citizen’s.
When evaluating a public employee’s claim that an employer violated the First Amendment, the courts will analyze the facts in two parts. The first question is whether the employee was speaking as a private citizen about a matter of public concern. The second issue is whether the employer had adequate justification to treat the employee differently than a member of the general public. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
First Amendment protections don’t apply when an employee is “speaking” as a function of his or her job or if the matter is primarily a private, individual concern.
For example, in one situation, a teacher maintained a blog that was highly critical of her students and her school’s administration. The school caught wind of it and fired the teacher. She sued under the First Amendment. However, the court ruled against her. The court found that any public interest being expressed was far overshadowed by her private concerns with the less-than-exceptional students, parents, and administrators. See Munroe v. Central Bucks Sch. Dist., 34 F. Supp. 3d 532 (E.D. Pa. 2014).
In another case, a sheriff’s deputy “Liked” a social media post of the Sheriff’s political opponent. After the election, the Sheriff retaliated against the deputy. The court in that case held that a mere social media “Like” was expressive enough to constitute protected Free Speech. See Bland v Roberts, 730 F.3d 368, 385 (4th Cir 2013).
Government employers and employees should both be aware of the implications of the Constitution in the workforce. Ideally, an employee handbook, policy manual, or the rules and regs reflects those principles in some manner so as to provide appropriate guidance to front-line managers and supervisors who have to worry about day-to-day implementation.
The Concept of “Just Cause” in Labor Law
Labor unions have long been recognized in the private sector, by the NLRA, and in the public sector, by the Public Employment Relations Act (PERA), MCL 423.201 et seq. Either express or implied into nearly every labor contract is the concept of “just cause”– a concept that includes procedural and substantive fairness considerations.
Arbitrators usually have the final say as to whether an employer’s disciplinary decision was supported by just cause. As a general rule “an employer does not have an unabridged right to punish every instance of immoral conduct while away from the workplace or off duty.” George T. Roumell, Jr., Roumell’s Primer on Labor Arbitration, at p. 87 (6th ed. 1986). And since most social media use occurs off-duty (at least in theory…), unionized employers are limited in terms of how they can discipline employees for social media use.
Yet labor principles indicate that an employer can penalize off-duty conduct that bears a sufficient nexus between the improper conduct and the employment relationship. In other words, an arbitrator will typically only sustain discipline for off-duty, off-premises conduct (including social media use) when it is work related. See, e.g., City of Cleveland, 17-1 ARB ¶6846 (Cohen 2015), quoting Elkouri & Elkouri, How Arbitration Works, at p. 13-161 (7th ed).
For example, Arbitrator Cohen upheld the discipline of a police officer who wrote a public social media post to the editor of a local news website to express his views on the demonization of police officers. He identified himself as an officer and made negative comments about the chief of police and the mayor, among other decision makers. Unsurprisingly, the arbitrator found the conduct to be work-related because the post tarnished the department’s reputation and had the potential to incite chaos within its ranks.
When a potential disciplinary situation involves off-duty social media use, employers and employees should refresh themselves on the requirements of just cause and the particulars of working in a unionized environment.
This addresses some common situations, but it is by no means exhaustive. There are any number of situations where it may be unwise or unlawful to discipline an employee for social media use. But understanding the basics will help you to spot issues so you know when to ask for help.