Published in the Union Leader (9/25/2017)
Q: One of my at-will employees, angry about not receiving a promotion, just posted a photo and nasty rant on Instagram about a coworker who did receive a promotion. I have zero tolerance for this type of pettiness, and I want to terminate her now. Can I?
A: It depends. Most private sector employees — including nonunion employees — are shielded by the National Labor Relations Act (NLRA) from discipline for engaging in concerted activity for mutual aid or protection. In some cases, protected activity can even include posting complaints on social media when they concern working conditions.
Employee conduct is not protected by the NLRA, however, if it is sufficiently egregious or disruptive. Threatening language, discriminatory slurs, or disparagement of an employer’s services, products or customers are more likely to fall on the side of unprotected conduct. You also are likely on safe ground in terminating an employee for posting proprietary or trade secret information. But tread carefully: rudeness, disrespect and even expletive use do not always make an employee’s actions unprotected. The details will be important.
Moreover, to be covered by the NLRA, an employee’s actions must be “concerted.” Individual gripes, as opposed to group complaints, usually are not protected by the act.
Unfortunately, the line between individual and concerted activity is often blurred — particularly when it comes to social media posts. If the employee is engaged in, with or on the authority of other employees, or is seeking to induce group action, the conduct will be considered concerted.
Did the employee’s rant cover the company’s practices generally or with respect to a specific group of employees — or is she just grumbling about her own situation? Did the post spark other employees to respond with similar concerns, or otherwise continue a conversation that began in the workplace — or is she just venting on her own? Did the employee’s post cover a particularly “vital” term or condition of employment, such as wages? Context matters here.
Finally, if you are relying on a rule in your employee handbook (like a social media policy), you also should give thought to whether the rule is overbroad. A policy that prohibits employees from talking about work or other employees on social media, for instance, is likely to be overbroad because employees would reasonably construe the rule as prohibiting NLRA-protected activity.
The above considerations aside, it is important to weigh carefully the costs, benefits and risks of terminating an already-disgruntled employee, as well as to consider your overall business goals. So take a breath, and consult with legal counsel and/or your human resources representative before acting.
Rachel can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation