Question: Can we fire an employee for an inappropriate social media post?

Answer:

Many are surprised to learn that often times you can’t.  Although the answer largely depends on the particular facts and circumstances, many recent cases have found in the employees’ favor.  Take, for example, a catering worker who became upset when his manager chastised employees in a “raised, harsh tone” about the employees “chitchatting” in front of guests at an event.  In response, one employee went outside and posted on Facebook that “Bob is such a NASTY MOTHER F—— don’t know how to talk to people!!!!!! F— his mother and his entire f——- family!!!! What a LOSER!!!!! Vote YES for the UNION!!!!!!”  This posting, from his personal phone while on an authorized break during work hours, but two days before employees were to vote for union representation, was visible to his Facebook friends or anyone viewing his Facebook page.  The employer investigated the posting and fired him.  Seems like a reasonable response to such a harsh post specifically directed at a manager and his family, right?

Well, the National Labor Relations Board (NLRB), which has jurisdiction over both union and non-union employers, and the Court of Appeals held that the employer could not fire him.  In their decisions, the NLRB and Appellate Court considered the fact that the employer permitted profanity and found that, while “distasteful,” the Facebook post was legally protected.  Specifically, that the employee was fired for his union activity and complaints about supervisors abusing employees.

Would the decision have been different had the employee not included the “Vote YES for the UNION!!!” line or if the post hadn’t occurred right before a union election?  Maybe.  But the NLRB has broadly interpreted social media posts about “terms and conditions of employment” to be protected concerted activity, even though the posts are in writing and “visible to the whole world.”  More and more, what employees used to discuss around the water cooler, now often appear in (or are discussed via) social media posts.  So use extreme caution before terminating employees for the content of their Facebook or other social media accounts.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: Do on-campus recruiting programs put companies at risk of age discrimination claims?

Answer:

Well, that remains to be seen, but there seems to be a shift in that direction. While job applicants can sue for intentional discrimination because the Age Discrimination in Employment Act (ADEA) prohibits an employer from “failing or refusing” to hire individuals because of their age, there is an open question as to whether job applicants can sue for unintentional discrimination if a facially neutral policy (like an on-campus recruiting program) adversely affects someone age 40 or over. In other words, it remains unclear whether applicants age 40 or over can sue employers who recruit from business schools, law schools or other on-campus programs because the employers’ focus on recent graduates necessarily has a disparate impact on older applicants.

There are a few recent court cases that have had opposite outcomes (one court that allowed such a claim and another that denied such a claim), but both cases turned on the same plain language of the ADEA.  Perhaps the Supreme Court will take up this issue to resolve the uncertainty.  In the meantime, we can expect to see more cases along these lines given this ambiguity in the law.  And we needed another type of claim to worry about, right?

Employers most certainly will continue to recruit on campuses, but employers should make sure they can articulate legitimate business reasons for such practices.  As long as there are reasonable factors other than age, such as wanting lower salaried employees with no experience in entry-level positions who need training to build skills and knowledge and to learn your culture and way of doing business, then your recruiting program should be defensible.  Some employers might be more subtle and indicate a preference for applicants who went through a particular program only offered in college, and which was only recently available. Whatever your non-discriminatory reasons are, be sure your records support them.

About the Author:  Laura Liss is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.