Speculation starts to become educated positing as decisions in
our area of discussion continue to be issued in greater
numbers. Two recent decisions involving social media
and employment law are worth noting: one on Facebook firings
(today), and one on the discovery of social media accounts in
This past Friday, an Administrative Law Judge at
the NLRB issued a decision after holding a 3-day non-jury trial
in February. The case involved three employees who were
fired by a San Francisco clothing store (Bettie Page
Clothing). The ALJ found that the employer
violated the employees' "protected concerted
activity" rights under the National Labor Relations Act
("Act") when it fired the employees for various Facebook
posts, and further violated the Act by implementing an overbroad
The ALJ's decision is heavy on the background details and
the sequence of events leading up to the termination.
It is worth a perusal. In terms of the first violation,
the gist is that the employees began posting comments on Facebook
that criticized their store manager and how the manager treated
employees, as well as "presented the concerns of the employees
about working late in an unsafe neighborhood[.]"
The ALJ ruled that the employer failed to meet its burden of
showing that it would have fired the employees even without the
offending posts. Reading between the lines, though, it
is clear right from the first lengthy footnote on page 2 of the
decision that the ALJ was not happy with counsel's demeanor and
litigation tactics, or the credibility of the employer
On the second violation, the ALJ found that the employer
violated the Act by "maintaining a rule that forbids employees
from disclosing wages and compensation" to other employees or
third parties. Although the employer removed the
improper policy from its handbook right after a complaint was
issued in this case, there was no evidence that employees were ever
actually informed of the change.
We will see how this decision holds up on appeal. For now,
the ALJ has required the employer to reinstate the employees (that
should be a fun morning hello), compensate them for lost back
wages, and post a notice in the store that states both that the
company has violated federal law and the rights that employees have
under the Act.
Employer Take Away: What should you
as an employer take away from this
There are a few take-away's. First,
don't piss off a judge.
Second, emotions seemed to play a part in the employer's
underlying decisions after learning of the Facebook
posts. Stay away from trigger-happy decisions,
and give careful consideration to what should (and can) be done in
the face of social media activity that you deem to be
Third, as with any adverse employment decision, make sure you
are on solid ground for your decision, and, particularly, that your
documentation is effective and backs up your stated reason for the
adverse decision. There's little worse at trial
than documents that are inconsistent with the testimony of your
Fourth, make sure you review your handbooks and policies for
compliance with the most recent developments in this area of the
law. And when you do act to change something in good
faith, make sure you tell your employees. It does
nothing to create proper policies if those policies are not
communicated and enforced appropriately.
As we have previously discussed, if you want your electronic contracts to be enforceable, it is a best practice to require the counterparty to affirmatively accept the contract by checking a box or clicking a button.
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