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Our customer relations department received complaints about employee posts on social media. We received demands to terminate this employee. The employee’s posts are damaging our brand, but the employee is outstanding at the workplace. What should we do?

You are experiencing the “new frontier” of difficult business issues that society will have to deal with in the coming years.  What used to be spoken to a few people is now posted and broadcasted to thousands or millions of people on social media.  The advent of social media has significantly changed how people communicate. The speed at which current events unfold and the rapid availability of information make social media an ideal platform for individuals to share their thoughts and opinions. As more and more people trend toward social media, the increased sharing of views and ideas have the potential to impact employment decisions and relationships. With growing emphasis on building and protecting a reputable brand, developing an effective strategy to handle public scrutiny and subsequent disciplinary issues related to employees’ social media activity can prove invaluable. However, before considering action, franchisors and restaurateurs/employers should be mindful of potential legal risks.

First, this employment issue is primarily between the employee and its employer, your franchisee. Granted, the employee’s social media posts may be damaging to your brand, but you cannot require that your franchisee hire or fire any employee, or risk that you become a joint employer with the franchisee.  You should hold your franchisee accountable to a social media policy in your operations manual. 

For your franchisee employer, employers sometimes overlook that the National Labor Relations Act (the “Act”) protects concerted communications of private sector employees. Meaning, communications undertaken between two or more employees that seek to improve the terms and conditions of employment. Similarly, the Act prohibits employers from engaging in discrimination related to any term or condition of employment or maintaining workplace rules, such as an overbroad social media policy, that tends to chill employees from engaging in protected activity under the Act.

With regard to employee comments posted on social media, the National Labor Relations Board (“NLRB”) recently held that a sports bar and grille’s termination of certain employees violated the Act when the employees posted profane remarks related to the grille’s alleged failure to withhold the proper amount of payroll taxes. The NLRB reasoned that the comments were protected concerted activity because the employees’ posts related to a workplace complaint. This highlights the NLRB’s position on social media: if more than one employee is engaged in social media postings or exchanges that revolve around their workplace likes and dislikes, it is likely to be protected activity under federal law. In contrast, where the social media activity is restricted to a single employee’s complaints or gripes, with no input (comments, likes, or shares, for instance), the NLRB is less likely to fault an employer who disciplines misbehaving employees.  The NLRB has upheld employer discipline under circumstances where an employee posted derogatory remarks about a supervisor that included reference to the supervisor being a “scumbag” and referring to the supervisor by the numerical code (17) … code in the company for a psychiatric patient. Similarly, an employer was within its rights to discipline when an employee posted a series of comments questioning whether certain individuals should be allowed to procreate. 

As illustrated, determining if and when to take disciplinary action against an employee based on their social media presence can be difficult and unclear. Employers should ensure that they have an employee handbook or employment policies that clearly establish an at-will employment relationship, as well as a concise social media policy that exempts protected activity.  Taken together, employers can make proper business decisions related to employment and mitigate exposure to wrongful termination claims. However, before taking any action, employers should carefully analyze the content and context of the particular social media post to determine whether the speech could be protected under the Act and contact qualified legal counsel to help.

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At Fahey Schultz Burzych Rhodes PLC, we’ve been helping municipalities, franchised businesses, employers, and more with their legal needs since 2008. We’d love to learn how we can help you, too.