Last week we reviewed a Butler Medical Transport firing based on a Facebook post which was ruled illegal by an Administrative Law Judge. This week we read about a different outcome for a different Butler employee allegedly fired due to his Facebook post.
In this case, Michael Rice created a Facebook post stating that he was “broke down” for the second time in two weeks because the company was unwilling to replace malfunctioning equipment. Butler terminated Rice over the post, and was able to produce maintenance records to the Administrative Law Judge that proved that Rice’s vehicle had been in working order at the time of the post. In addition, Rice had testified at an earlier unemployment insurance hearing that his post had referred to a private vehicle rather than a Butler vehicle. These facts induced the judge to find that Rice’s termination was not illegal. As the post was maliciously untrue and since Rice knew it to be untrue at the time of the posting, the board found in favor of Butler.
The use of social networking sites by employees continues to be a matter of concern for employers. Increasingly, social sites have the power to make or break a company’s reputation, making it vital to draft thoughtful (and legal) policies regarding what employees may and may not post regarding their work situation.
The problems Butler Medical Transport encountered with employee Facebook posts might have been avoided had they crafted policies that accurately stipulated what was and was not acceptable online behavior. Butler utilized an informal bulleted list of “work rules” that barred employees “from using social networking sights [sic] which could discredit Butler … or damage its image.” An Administrative Law Judge at the National Labor Relations Board felt that the list constituted official company policy although Butler argued otherwise. The judge pointed out that Butler had relied on the bulleted list to terminate two employees in relation to their Facebook posts. Accordingly, this list has the effect of being official company policy.
Butler’s failure to successfully argue that their informal list was not company policy is a cautionary tale to other employers. When a workplace rule is written down, communicated to employees and may result in disciplinary action if it is broken, then it is official policy and a judge may treat it as such. Clearly, any company rules, policies or guidelines dealing with social media need to be drafted with care and reviewed by legal counsel before being put into effect. Doing so can save a lot of headaches and clears the way for the employer to focus on generating profits rather than policing employee Facebook posts.
Sylvester, Oppenheim & Linde represents businesses and their owners in most types of litigation. If your business has a legal problem, contact Richard Oppenheim directly for a prompt, no charge initial consultation. You may use the contact form in the left column or call 818-461-8500.