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Employer Law Report

One Facebook Firing Case. Two Terminations. NLRB Finds Only One Unlawful and Notes How It Treats Malicious and Untrue Posts

Posted in Social Media

In another Facebook firing case, involving two separate terminations, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) ruled that a company violated and did not violate the National Labor Relations Act (the Act) after terminating employees for posting comments on Facebook. In Butler Medical Transport LLC and Michael Rice and William Lewis Norvell, Case Nos. 5-CA-97810, 5-CA-94981 and 5-CA-97854 (Sept. 4, 2013), two employees were terminated for posting comments on Facebook. One suggested to a former employee that she contact an attorney or the Labor Board. The other, well he just made up some stupid post about breaking down in a company vehicle.

The Termination of William Lewis Norvell

The facts of the first case are relatively simple. William Norvell worked as an emergency medical technician for Butler Medical Transport, LLC (“Butler”). He went on workers’ compensation leave on July 21, 2012. On October 10, 2012, Norvell accessed the Facebook page of Chelsea Zalewski, a former Butler employee, through his personal, home computer. Zalewski who had been Norvell’s partner at Butler posted a note on her page indicating that Butler has terminated her as follows:

Well no longer a butler employee….Gotta love the fact a “professional” company is going to go off what a dementia pt says and hangs up on your when you are in the middle of asking a question.

Following her post, several people posted comments in response. Zalewski responded to some inquiries about what the patient actually reported, which included the following:

Yeah ur telling me! The pt said I told her that they never fix anything on the units…Yeah i no that pt I’m not dumb enough to tell her let alone any pt how shitty those units are they see it all on their own.

Norvell decided to respond and he posted the following comment:

Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.

Another employee then suggested that Zalewski seek employment with another ambulance company to which Norvell posted another follow-up comment, “You could contact the labor board too.”

A copy of the posts were delivered to Butler’s human resources director. During the termination discussion, Norvell confirmed to the HR director that he had indeed authored the Facebook posts. The HR director informed Norvell that his Facebook posts violated the company’s bullet point list of rules, which included a promise by employees that they would refrain from using social networking sites that could discredit Butler or damage its image. The HR director then informed Norvell his employment was being terminated. No reason other than the October 10th Facebook posts were discussed with Norvell as the reason for his termination.

Norvell filed a charge with the NLRB. after concluding that there was no question that Norvell would not have been terminated but for his Facebook post, the ALJ’s only issue with respect to Norvell’s termination was whether the post constituted protected concerted activity within the meaning of the Act. In analyzing the post, the ALJ indicated that the Facebook post must be considered in the context in which it was made. Here, Norvell was advising Zalewski a fellow, yet former employee, to obtain an attorney and to contact the labor board. What the ALJ found particularly interesting was the fact that Norvell was responding to a post in which Zalewski herself stated that she had been terminated for commenting to a patient about the condition of Butler’s vehicles, which is a matter of mutual concern to Butler’s employees. By advising Zalewski to obtain legal counsel or contact the Board, the ALJ found that Norvell was making a common cause with Zalewski regarding a matter of concern to more than one employee and thus found that the post was protected regardless of whether Norvell’s post may have an adverse effect on Butler’s business.

The Termination of Michael Rice

Mr. Norvell wasn’t the only employee terminated by Butler for making Facebook posts. On January 14, 2013 Michael Rice was terminated by Butler for posting the following on Facebook:

Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna by new shit!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store.

Butler’s Chief Operating Officer testified without contradiction that he had reviewed Butler’s maintenance records and determined the Rice’s ambulance had not broken down when he made the post. He also testified that the assertion made in Rice’s Facebook post was absolutely false. At an unemployment insurance hearing, Rice contended that his post referred to a private vehicle, not one of Butler’s ambulances. As a result of the evidence provided at the unemployment hearing and at the NLRB’s hearing, the ALJ concluded that Rice’s allegations made in his Facebook post were “maliciously untrue and made with the knowledge that they were false.” As the ALJ noted, an employee’s public criticism of an employer is unprotected if they it is maliciously untrue, i.e., if they are made with knowledge of their falsity or with reckless disregard for their truth or falsity. As a result, the ALJ concluded that Rice’s statement lost any protection that it might otherwise have had under the Act and dismissed the complaint regarding Rice’s termination.

The ALJ’s Take on Butler’s Bullet Point Lists

Lastly, the ALJ took on Butler’s sheet of bullet points, which Butler had been distributing to all newly hired employees since November 2011. Among the items on the bulleted list was a promise whereby employees promised they “will refrain from using social networking sights which could discredit Butler Medical Transport or damages its image.”

Though Butler argued that the bullet point list was not a policy, the ALJ found that this was a “distinction without a difference” and that the bullet point restricting social networking was relied upon by Butler in terminating employees, including Mr. Norvell. In addition, because new employees were required to acknowledge receipt of the bullet points, they would reasonably understand they would be subject to discipline up to and including termination if their conduct did not conform to them. As such, the ALJ found that the bullet point restricting social networking was unlawful because employees would reasonably construe it prohibit Section 7 activity. In addition, the ALJ found the bullet point list regarding social networking sites unlawful specifically because it had been applied to restrict the Section 7 rights of both Norvell and Zalewski.

Conclusion

After all was said and done, the ALJ held that Butler violated Section 8(a)(1) of the Act by discharging Norvell but it did not violate the Act by discharging Rice. It did find that Butler violated Section 8(a)(1) in maintaining a provision in its policy prohibiting the use of social networking sites which could discredit it or damage its reputation.

Take Aways

This case serves as yet another example of what types of comments on social media sites constitute protected conduct and which ones do not. This case is particularly important because it discusses comments made on social media that while discussing the terms and conditions of employment, are “maliciously untrue and made with the knowledge that they were false,” and therefore lose protection under the Act.

In addition, employers should be advised that no matter how creative they try to be when they name their policies, i.e., whether they are bullet points, guidelines, code of conduct, acknowledgments, etc., if something comes down from the company that directs employees how to act, it is a policy and the NLRB can and will review it as such. Hey, it might even find it unlawful. Basically, it’s the duck premise. No matter what you call it, if something looks like a policy, works like a policy, and employees treat it like a policy, it’s a policy, and an employer’s attempt to call it something else is a distinction without a difference.

Employers should review all of their “policies” and any other similar internal memoranda, codes of conduct, bullet point lists, etc., that relate to social media to be sure they conform to the NLRB’s recent rulings on social media policies.

On another point, this case underscores the point that we have written about on this Blog numerous times. Employers need to review their employees’ social media posts in the context in which they are written to determine whether they potentially could be protected conduct, as Employers are prohibited from taking adverse actions against employees for those protected posts. However, posts that are not related to terms and conditions of work and of which are not protected or that are malicious and blatantly false are not protected by the Act and employers can terminate employees for same.

So, the golden rule here, employers review social media postings in their full context before making any disciplinary decisions based on those postings.