Legal View: When can an employer fire an employee over an offensive Facebook posting?

By Howard Rubin and Don Stait

The Daily Record Newswire

In July, the National Labor Relations Board issued three decisions that shed some light on the question of when an employer can lawfully fire an employee for posting offensive work-related comments on Facebook.

In the first case, an employee of a home for indigent and mentally ill individuals posted offensive comments on her Facebook wall about the residents. Only her Facebook "friends" had access to the wall and none of her co-workers were included in that group. The NLRB's Office of the General Counsel concluded that the employee was not protected under the National Labor Relations Act because: 1, the employee was merely communicating to friends about her work; 2, the post did not pertain to the terms and conditions of her employment; 3, the employee did not discuss her posts with co-workers; and 4, the employee was not seeking to induce collective action by her posts.

In the second case, a bartender posted a comment on Facebook to complain to a relative that his employer's tip policy was unfair. Although the employee's comments did relate to the conditions of his employment, the General Counsel concluded that the NLRA did not prevent the firing, because the employee did not discuss his posts with co-workers, and he was not seeking collective action.

The final case involved a retail store employee who posted offensive comments about perceived unfair treatment by her assistant manager. The post was widely read and many store employees commented on it. In addition, the post concerned the conditions of her employment. Nevertheless, the General Counsel found that the termination was lawful under the NLRA because the post expressed only an individual's gripe. Although other employees read the posts and some co-workers were sympathetic, the employee did not succeed, or even attempt to move other employees to collective action. The employee was writing only on behalf of herself.

While these three situations do not come close to addressing the full range of possible offensive Facebook postings, employers should use the following standards as guidelines when considering whether to discipline an employee for an offensive Facebook post:

Protected activity: An employee "acting with or under the authority of" co-workers: (a) "seeks to initiate, induce or prepare for group action;" or (b) "brings truly group complaints to the attention of management."

Protected activity: An employee's activities are "the logical outgrowth of concerns expressed by the employees collectively."

Unprotected activity: An employee is engaged in activity "solely by and on behalf of the employee himself."

Unprotected activity: An employee's comments are "mere griping" rather than "group action."

Lockouts come with risks

Except in the health care industry, a union can order a strike without giving any advance warning to the employer, so it might seem that an employer also would not need to give advance notice of a lockout to the union. But this is not the case.

In a recent NLRB decision, the board unanimously upheld an administrative law judge's finding that a lockout was unlawful because the employer did not notify the union beforehand. The NLRB made it clear that "the union must be informed on a timely basis of the employer's demands so that the union can evaluate whether to accept them and prevent the lockout."

In the case decided by the NLRB, the employer proposed several alternatives to the union's health benefit plan, but the employer did not specify which plan or plans the union could accept to prevent the lockout until after the lockout had begun. The judge concluded that a lockout unlawful at its inception remains so until the employees are reinstated and paid for any losses incurred - including benefits, wages and interest.

EEOC addresses GINA's impacts

The Equal Employment Opportunity Commission last month released an informal discussion letter that reiterated its position that an employer-provided wellness program offering financial inducements to provide genetic information is unlawful under the Genetic Information Nondiscrimination Act.

GINA limits the ability of insurers and employers to collect genetic information, which is broadly defined to include family medical histories, from employees. This has raised concerns about whether health surveys included as part of employer-provided wellness programs violate the law.

The key, according to both the EEOC final rule implemented last November and the letter released last month, is that the consent to provide the information must be voluntary, knowing and in writing. To be in compliance, the employer must inform the participant that she is not required to provide the genetic information in order to receive any benefits the program might confer.

Employers may offer financial inducements for completing a health risk assessment that include questions about genetic information, as long as the questions are identified as such and make clear that the employee is not required to answer those questions to receive the reward. In addition, individualized genetic information may be provided to the individual or his identified health care provider, but may only be provided to the employer in aggregate form without the identity of the individual.

For more information, visit www.eeoc.gov/laws/types/genetic.cfm.

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Howard Rubin is a shareholder in Littler Mendelson's Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is special counsel in Littler Mendelson's Portland office. Contact him at 503-221-0309 or dstait@littler.com.

Published: Fri, Sep 9, 2011

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