Author: Beth P. Zoller, XpertHR Legal Editor

A handful of cases handed down by the National Labor Relations Board (NLRB) has left employers wondering whether they have any rights at all to regulate, monitor and discipline employees for what they post on Facebook and other social media without running afoul of the protected activity provisions of the National Labor Relations Act (NLRA). However, two recent cases signify that employers are permitted to enforce lawful social media at work policies and discipline employees under certain circumstances for inappropriate postings that undermine the employer's policies and threaten the employer's lawful business objectives.

School Board Properly Removed Teacher for Inappropriate Facebook Postings

In In the Matter of the Tenure Hearing of Jennifer O'Brien, State Operated School District of the City of Paterson, Passaic County, +2013 N.J. Super. Unpub. LEXIS 28 (App. Div. 2013), the New Jersey Appellate Division affirmed the dismissal of Jennifer O'Brien (O'Brien), a tenured first grade teacher in Paterson, New Jersey, based on derogatory Facebook comments she made about her students. Frustrated that the school was not addressing the behavioral and disciplinary issues of her students, many of whom were African-American or Latino, O'Brien posted the following on her personal Facebook page:

  • "I'm not a teacher - I'm a warden for future criminals!"
  • "They had a scared straight program in school - why couldn't [I] bring [first] graders?"

O'Brien was subsequently removed by the school board and tenure charges were filed against her. The Administrative Law Judge (ALJ) and Acting Commissioner of Education determined that O'Brien's actions warranted her removal. The ALJ found that O'Brien's comments were not protected by the First Amendment because she was not commenting on a matter of "public concern" but rather was personally expressing her dissatisfaction with her job. Further, O'Brien's right to express her views was outweighed by the district's need to operate its schools efficiently because "in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools." The ALJ found that O'Brien engaged in "conduct unbecoming a teacher" and "failed to maintain a safe, caring, nurturing, educational environment."

The appellate court agreed with the ALJ's findings that the seriousness of O'Brien's conduct warranted her removal and that the Facebook postings were not protected by the First Amendment because O'Brien was not commenting on a matter of public concern, but personal interest. There was credible evidence to support the notion that the district's efficient operation of its schools outweighed O'Brien's right to free speech.

Wal-Mart Properly Enforced Social Media Policy

In Rodriquez v. Wal-Mart, +2013 U.S. Dist. Lexis 3025 (N.D. Tex. 2013), Virginia Rodriquez (Rodriquez), a Hispanic manager who was over the age of 40, was placed on disciplinary status for violating the store's associate purchase policy and warned that any subsequent violation of company policy or misconduct would result in her termination.

Approximately nine months later, Rodriquez saw photos of co-workers at a July 4th party despite the fact that those individuals had called out sick that day. In response, Rodriquez went on one of the co-worker's Facebook page and accused the employees by name of lying about the reason they were absent from work. The co-worker reported the incident to HR, which immediately investigated the matter. HR determined that Rodriquez violated Wal-Mart's social media policy by "publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns."

The social media policy had been put in place to avoid public comments that adversely affect employees or job performance, and it directed employees to resolve work-related complaints by speaking directly with co-workers or by utilizing the company's open door policy, rather than by posting comments to social media. The policy further instructed employees that if they chose to post complaints or criticisms on social media, they should avoid doing so in a way that is "unprofessional, insulting, embarrassing, untrue, [or] harmful." Because she was already on disciplinary status, Rodriquez was terminated.

Rodriquez filed suit alleging age and national origin discrimination and retaliation. The court dismissed Rodriquez's claims, finding that the termination decision was based on a legitimate and nondiscriminatory reason - her violation of Wal-Mart's associate purchase policy and subsequent violation of the company's social media policy - and that Rodriquez failed to prove that these reasons were pretext for discrimination.

Advice for Employers

These cases demonstrate two situations in which it was clearly appropriate to discipline employees for social media activity that compromises or threatens an employer's legitimate business interests. InIn the Matter of the Tenure Hearing of Jennifer O'Brien,the school district had a legitimate interest in maintaining the efficient operation of the school and maintaining a safe and nurturing environment for students. In Rodriquez, Wal-Mart had a legitimate interest in encouraging employees to resolve complaints privately with the company, rather than in a public forum, but also instructed employees that if they chose to do so it should be done in a way that is professional and truthful.

In light of these cases, employers should keep the following in mind when developing and implementing social media policies and seeking to discipline employees for social media activity:

  • Convey the employer's legitimate business objectives in implementing the social media policy;
  • Instruct employees that they should refrain from engaging in inappropriate or unacceptable conduct and clearly define those terms;
  • Remind employees that social media postings are public and generally available for all the world to see;
  • Specify that harassing, discriminatory, obscene, pornographic and malicious conduct on social media is not acceptable;
  • Assure employees that the intent of the social media policy is not to infringe upon employees' Section 7 NLRA right to engage in protected activity and collective action related to their wages, hours and working conditions.
  • Ask that employees include a disclaimer that an employee's views, positions and opinions expressed on social media are those of the employee and not the employer;
  • Prohibit employees from divulging the employer's confidential information and trade secrets and require compliance with nondisclosure and confidentiality obligations. Define what is meant by confidential information and trade secrets;
  • Advise employees to use their best judgment and exercise personal responsibility when posting on social media; and
  • Require employees to obtain authorization before posting a message that is either in the employer's name or may be attributed to the employer or before speaking to the media on the employer's behalf.

Additional Resources

Employee Management > Employee Privacy > Monitoring Use of Social Media Networks

Employees Have No Inherent Right to Privacy in Social Media Postings

NLRB Approves Employer's Social Media Policy

NLRB Says Employee Complaints on Facebook May Be Protected Activity

NLRB Strikes Again and Issues First Social Media Decision

Dos and Don'ts Regarding Social Media Policies - Chart

Social Media Policy

Acknowledgement and Consent Form for Social Media Use

How to Draft and Enforce a Social Media Policy in the Workplace

Employee Conduct and Discipline Policy

Dos and Don'ts of Social Media - Supervisor Briefing