Editor’s note: The following article written by Michael Schmidt, “Social Media and the Hospitality Industry: Thoughts On A Recent NLRB Complaint,” refers to a case whose final settlement can be viewed at http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments.
You can’t stop derogatory reviews of your restaurant from appearing online. But is there anything you can do if one of your employees goes on a social networking site and posts complaints about your restaurant? A top labor attorney says that when social media and employment law collide, the legal ramifications are very, very tricky.
There is no denying the prevalence of social networking sites in society today, including in the restaurant and hospitality industries where many workplaces are defined by their relatively “social” and informal settings. However, with the benefits and ease of social media also come certain legal implications that employers should consider when deciding whether to use social media (or the information obtained from social media) in their employment-related decisions. A recent development involving the National Labor Relations Board (NLRB) highlights the legal tightrope that must be walked.
The NLRB is charged with interpreting and enforcing the National Labor Relations Act (“the Act”), which is one of those employment statutes that is rife with misunderstanding in the minds of many hospitality industry employers who believe that the Act is only applicable to the unionized workforce. In fact, while the Act does apply largely to the union setting, it is important to dispel the employer myth by understanding that the Act also applies to private, non-union employees as well.
Enacted in 1935, the Act affords certain protections to employees, including the right to engage in “concerted activities” for their “mutual aid or protection.” Thus, employers can be found to have engaged in an “unfair labor practice” if they interfere with the exercise of that right. “Concerted activities” include activities in which an employee engages with, or on the authority of, other employees, and not merely on that employee’s own behalf. Fast forward to 2010, and the new world of social media has implications for the proscriptions in this time-honored statute.
On October 27, 2010, the NLRB filed a complaint against American Medical Response of Connecticut, Inc. after the ambulance service fired an employee for criticizing her boss on Facebook. Following an internal dispute at work, the employee apparently posted negative remarks about her boss on her Facebook page, albeit from her home computer. That comment apparently prompted “supportive responses” from her co-workers, which then resulted in additional negative comments being posted by the employee about her boss and employment conditions. In its court complaint, the NLRB alleged that the employee was unlawfully terminated for engaging in protected concerted activities with her co-workers, by posting/discussing various concerns about her employment on a social networking site.
As noted above, the restaurant and hospitality industries are particularly vulnerable to groups of employees engaging in social activities (both in the workplace and outside through forms of social media) that could spill into discussions and activities involving the employees’ working conditions. The NLRB’s recent court action is still in its infant stage, but there are a few points that should be considered by employers.
First, employers should consider whether to monitor social media use by employees, or utilize information obtained through social media, in the first instance. Consideration should be given to what information the employer feels it needs to obtain, and then to the particular individual(s) on behalf of the employer with whom access to such information should be entrusted. Sometimes the resulting problems associated with information, once obtained, is not worth the purpose for which it was originally sought.
Second, one cannot overstate the need to create appropriate social media policies that are not – as the NLRB suggested in its Connecticut complaint – overly broad and, perhaps, unlawful on their face.
Third, when considering taking adverse action against an employee based on social media statements or conduct, employers should consider whether that employee was engaging in protected activity under a statute such as the Act. For example, was the employee engaging in activity that bears a relationship to employees’ interests as employees, as opposed to mere political or non-employment-related interests? Do the statements evidence the mere lashing out by, or insubordination of, a single employee based solely on his or her own opinion, or is there evidence of “concerted” conduct between or among more than one employee, such that the activity could be for their “mutual aid or protection”?
Employer use of social media, and the law interpreting the viability of such use, is rapidly increasing and developing. Employers in the restaurant and hospitality industries should carefully navigate through this minefield to ensure that they will not also be on the receiving end of an NLRB complaint.
Michael C. Schmidt is a member of New York office of Cozen O’Connor, where he specializes in representing employers in employment litigation and arbitration, and counseling management on day-to-day issues. Schmidt is also an adjunct professor of law at Touro Law School in Central Islip, New York, where he teaches employment law, and author of Social Media Employment Law Blog ( www.socialmediaemploymentlawblog.com ) . He can be reached at mschmidt@cozen.com .