ASKED & ANSWERED: Patricia Nemeth

Workers who've been fired for bad-mouthing employers on social-networking sites are fighting back with the National Labor Relations Act of 1935, according to a recent story in the Wall Street Journal. The law gives private-sector employees certain rights to complain about pay, safety and other working conditions, but doesn't protect simple griping. And that means the battle is still unclear.

Patricia Nemeth, an attorney with Nemeth Burwell, P.C. in Detroit, specializes in the labor and employment arena as a litigator, consultant and negotiator. She talked to the Legal News about what employees, employers, and law professionals need to know.

MATHIS: How often are you talking to potential clients or clients who've had to discipline or fire an employee for posting something negative about on a social networking site?

NEMETH: We generally have at least one or two calls per week involving social media issues such as facebook, on line posts, texts, blogs, etcetera.

MATHIS: Are they worried about lawsuits filed against them by former employees?

NEMETH: I wouldn't say that employers are worried but they want to make sure that they proceed in a manner that comports with the law. Because of announcements we send to our clients and seminars we conduct, our clients are aware that this is a very fast changing area of the law.

MATHIS: Is the National Labor Relations Act of 1935 an appropriate defense?

NEMETH: The National Labor Relations Act is a statute that primarily protects the employee. It is not really a defense the employer would use.

MATHIS: What can management do to avoid lawsuits?

NEMETH: There are a number of actions an employer can take to avoid lawsuits. Review and update social media policies and also include language which recognizes the protection of the National Labor Relations Act. Interpret and enforce policies in a consistent manner. Look at the content and context of any posting, tweet or blog to determine if it is a personal gripe (not protected) or concerns terms and conditions of employment or discussions between employees about terms and conditions of employment (protected). Analyze any responses posted to determine if the response constitutes a statement about working conditions or is merely emotional support. Check with counsel before taking disciplinary action and keep up to date on legal changes in the social media area.

MATHIS: What kinds of things are the offending employees posting on-line?

NEMETH: Sometimes the posts contain comments about co-workers, frequently about supervisors. Some people just complain about the bad day they've had but unfortunately they may also include confidential or proprietary information about the company or if in a healthcare setting, a patient when doing so. There are discussions on Facebook about such things as employees' views on how the company should proceed with marketing events, the running of its business or the overall treatment of employees.

MATHIS: Don't most of your clients warn their employees about writing such posts? Is that warning important in a legal sense?

NEMETH: Many of our progressive clients have in place a technology use policy that covers the use of social media and prohibits posts, tweets, and blogs that are not protected by the National Labor Relations Act. It is important at any time for an employer to provide information to employees about its workplace rules, policies and procedures and the consequences should they not be followed.

MATHIS: Is there a hard and fast rule about when an at-will employee can be fired for a Facebook post?

NEMETH: Being an at-will employee means the employer or the employee can end the at-will employment relationship for any or no reason at any time. As a result, the employee cannot sue the employer for a breach of employment contract. However, there are a number of other laws, both statutory and common law that an employer must make sure are not being violated. So even if you have an at-will employee, the employer must make sure the post is not considered protected activity under the National Labor Relations Act before taking any disciplinary action. Additionally, the employer needs to be mindful of how it accesses and/or obtains the information. For example, by accessing the social media posting could the employer become subject to a common law invasion of privacy claim?

MATHIS: How about public employees?

NEMETH: Many public employees are unionized, so in addition to the concerns noted above, the employer must make sure it is not in violation of its agreement with the union or work rules promulgated pursuant to that agreement. Moreover, public employees have constitutional rights that employees who work for private employers do not have. The First Amendment right to free speech may come into play as may the Fourth Amendment (e.g., was the method the public employer used to access the information an improper search or seizure?) Because of this, there are other issues a public employer must consider.

MATHIS: Any final thoughts?

NEMETH: This is an emerging area of the law and it will continue to develop as administrative agencies and courts grapple with the challenging issues presented by technologies and the new and multiple ways in which people communicate.

Published: Thu, Dec 8, 2011