Your Social Media Activity Could Get You Fired. Is That Legal?

By Alejandra Cancino
Chicago Tribune.


Audelia Santiago’s photos of co-workers on her Facebook page prompted some snarky comments.

No big deal, right?

A suburban Chicago hotel and convention center where she worked as a banquet server, thought otherwise. Last year the Tinley Park Hotel and Convention Center sacked her for violating employee handbook rules, including one against “disloyalty.”

Now Santiago could get her job back. In June, an administrative law judge with the National Labor Relations Board ruled that the convention center violated federal labor law by imposing “overly broad” employee handbook rules on Santiago and her co-workers. Those rules, the judge said, could “chill” workers from talking about their working conditions, which are protected under federal labor law.

The convention center, which can appeal the ruling, declined to comment through its attorney.

The case illustrates a growing trend of the NLRB forcing employers to revise employee handbooks for the digital age as people talk about their workplaces on sites like Facebook and Twitter.

“Workers’ rights are the same at the water cooler as they are on the Web,” said Jessica Kahanek, an NLRB spokeswoman.

Bryan O’Keefe, a Washington, D.C-based attorney who represents employers in labor disputes, said about a quarter of his caseload involves social media, work rules or disputes over activity protected under labor law. “This is a hot area,” O’Keefe said.

The volume of cases, he added, is frustrating for employers, which are having trouble keeping pace with employee handbook changes mandated by the NLRB.

Even employers that change their rules worry about getting dragged into costly legal battles, said Nancy Hammer, senior government affairs policy counsel at the Society for Human Resource Management. What’s more, she said, the law will evolve along with new types of social media.

“This isn’t going away,” Hammer said.

Richard Griffin, NLRB general counsel, released a 30-page memo in March reminding employers that “well-intentioned” rules could be illegal. Under federal labor law, Griffin said employees have a right to discuss such things as wages, hours and conditions of employment and to strike and unionize. He also wrote that employees are free to criticize or protest their employer’s labor policies or treatment of employees; to argue and debate about unions and management; to communicate with news media, government agencies and third parties; and to photograph and make recordings.

As an example of what not to do, Griffin pointed to the former employee handbook of fast-food chain Wendy’s.

One of its rules required authorization before workers could make comments on social media about Wendy’s business, policies or employees. As part of an agreement with the NLRB, Wendy’s social media policy now prohibits comments on “trade secrets and proprietary company information.”

Another previous rule forbade the disclosure of the Wendy’s handbook. This year Wendy’s changed that rule to prohibiting employees from disclosing the handbook to competitors.

Wendy’s said in a statement that it periodically changes its employee handbook to ensure it is in compliance with laws and guidance from regulatory agencies.

The NLRB’s crackdown on employee handbook rules also has expanded its clout to workplaces that aren’t unionized. Previously the 80-year-old agency was known for regulating union-employer relations.

“The NLRB has become highly relevant to union and nonunion employees alike,” said Joe Tilson, an attorney with Cozen O’Connor who represents employers.

Not all social media comments are protected under labor law.

For example, in 2012 the NLRB found that a BMW car dealership in suburban Chicago lawfully fired a salesman who made fun of an incident at a nearby Land Rover dealership owned by his employer.
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A customer’s 13-year-old son drove an SUV into a pond.

The salesman posted a photo of the Land Rover with the caption, “This is your car: This is your car on drugs.”

“The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!” the salesman posted on Facebook.

Those comments, the board said, weren’t protected because they were posted without any discussion with other employees and “had no connection to any of the employees’ terms and conditions of employment.”

However, the NLRB also found that the salesman’s Facebook comments about a BMW event, where the dealership served hot dogs and bottled water, were protected because they were about his working conditions. The salesman thought the food and beverages didn’t match the luxury brand image and could affect commissions, views he expressed at a meeting and in conversations with other salesmen.

The BMW dealership was ordered to rewrite its employee handbook rules because the board found them to be overly broad.

In the Tinley Park banquet case, Administrative Law Judge Charles Muhl found that the convention center used an illegal rule to fire Santiago. The judge said false statements are protected as long as they are not malicious.

Overall, Muhl said the convention center’s rules could be construed to prohibit workers’ rights, like workers discussing complaints about supervisors.

While the convention center argued that Santiago’s comments weren’t protected under labor law, the judge ruled that they were protected because they centered on terms and conditions of employment.

Santiago’s Facebook postings show how even relatively tame online conversations can get employees in trouble.

Her Facebook wall displayed two photos from June 27, 2014. One was a photo a co-worker took of himself with two others. The co-worker uploaded it to her Facebook during their break with the caption, “No phones at work.” One of Santiago’s friends commented, “Tell Cody to do some work for once.” Cody responded that work wasn’t required.

After work, Santiago picked up the conversation. She agreed with Cody’s comment and added that she was the only one working like a “slave” while her co-workers were taking selfies. “lol,” she wrote.

She posted a second photo of banquet servers relaxing during their break. As a joke, Santiago posted, “That’s how we work at (the convention center).” One of her Facebook friends wrote that everyone in the photo looked tired. Another said it was “unbelievable” servers were paid to do nothing. Santiago wrote that she remembered playing games in the lunch room, but now “we don’t have time for that.”

Those comments, the administrative law judge said, came after Santiago began work at 5:30 a.m. and did not take her first break until 14 hours later. He later added, “Employees’ complaints about their hours of work, including heavy workloads, long have constituted protected activity.”

Muhl ordered the convention center to reinstate Santiago, to make her whole for loss of earnings and benefits and to rescind rules that violate labor law.

Santiago declined interview requests through her attorney, Alexis Martin.

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