KINGMAN - Employers considering firing someone may want to step back, look at the situation and decide exactly what they're firing this person for and then double-check that their reasoning doesn't violate the National Labor Relations Act.
Laura Robertson, a labor and employment litigator with Greenberg Traurig LLP, gave a presentation Thursday at the Northwest Arizona Human Resources Association conference regarding social media and the National Labor Relations Board.
She went over several cases regarding the subject and then armed employers with tools to help them protect themselves and their employees.
In the eyes of the NLRB, social media has become the new "town hall" where employees can go to complain about working conditions, wages and everything else job related, Robertson said. Therefore, most employee conduct on social media sites is considered protected concerted activity.
Employers may prohibit employees from harassing each other, threatening violence, disclosing trade secrets such as the formula for a particular soda, discussing business strategy, committing trade libel and defaming the company they work for. However, employers may not prohibit employees from discussing wages, management decisions, discrimination, union organization, concerns about an employer and workplace safety issues.
A practice that is becoming more and more prevalent in society is employer monitoring, Robertson said. This is often done to make sure employees aren't wasting their work time on Facebook, but Robertson said there are plenty of reasons to avoid it. Monitoring is a drain on resources and time, she said. It can also destroy employee morale, push employees "over the edge" and lead to negative publicity. Think Twitter and millions of people posting and re-posting that a certain business ruthlessly monitors employees with video cameras and computer scans.
If an employer decided to fire a person over Internet conduct, it is best that he or she makes sure to follow some relatively simple rules. Among other things, Robertson suggests employers print and retain copies of improper Internet posts, check the time of the post (did the employee do it during work hours?), consider alternatives to firing, remain wary of pretext arguments (you fired me because you're a racist) and establish an even-handed approach.
Also, it's best to have electronic communication policy within employee handbooks/agreements. But that policy must not be too vague or specific, Robertson said.
"Because if it is, the employer might as well not have a policy at all," she said.
Trying to enforce electronic policy is a slippery slope because of technology's exponential growth, she said. It is good for employers to give themselves a bit of leeway. Consider listing the current forms of communication you wish to prohibit, including cell phones, computers and the Internet, but also add in a phrase akin to, "And all other forms of electronic communication."
If an employer chooses to monitor their employees, it should be disclosed as well, Robertson said. For private employees, there is no realistic expectation of privacy, regardless of whether or not their computer is password protected, she said.
Lastly, train employees to know what to expect and revisit the issue frequently as technology changes, Robertson said.
"Employers must tread carefully," she said.
American Medical Response, a Connecticut ambulance company, fired employee Dawnmarie Souza after she called her supervisor a sexually derogatory term on her Facebook page because she had gotten in trouble due to customer complaints.
AMR denied Souza her union representation at the disciplinary hearing regarding the customer complaints - which was a huge mistake.
The NLRB argued that AMR's Internet policy was too broad and interfered with employees' rights to engage in concerted activity, Robertson said.
At a hearing, NLRB General Counsel Lafe Solomon said whether it took place at the water cooler or on Facebook, Souza was discussing working conditions and her supervisor, which is protected by the NLRA.
The case was settled out of court and no precedent was set, Robertson said. But if AMR would have thought the process through in the first place, it could have avoided the mess all together.
The company's first mistake was not allowing Souza's union representative to be present while she was disciplined. Robertson said this probably angered the NLRB and prompted the organization to take up Souza's fight. Second, since harassment protection extends past working hours, AMR was probably within its rights to fire her for the vulgar names she called her supervisor.
Essentially, employers can protect themselves by not making decisions based on knee-jerk reactions due to employee conduct on the Internet or in person, Robertson said.