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Social Mishap

Can you fire an employee for making inappropriate posts on social media? A human resources expert explains why the answer might be ‘No.’

October 2015, F&I and Showroom - Feature

by Dave Druzynski

In the June issue (“Too Much Information,”) of F&I and Showroom, I discussed the benefits and dangers of employers using social media in the hiring process. And while that remains a hot topic, it pales in comparison to the use of social media in the workplace. In several recent cases, employers — including dealerships — have found themselves on the losing side of court battles after an employee who was terminated for posting inappropriately on social media sites decided to sue.

Even so, it never ceases to amaze me how some people can post offensive content without fully understanding the consequences of their actions. Here are just a few examples of viral social media mishaps that cost people their jobs:

  • A Taco Bell employee tweeted “Guess where I work?” with a picture of himself urinating into a bowl of Nachos Bell Grande.
  • After the shooting deaths of two police officers in Hattiesburg, Miss., a Subway employee celebrated by tweeting a selfie with a caption commending those acts of violence.
  • Employees at a used-car dealership harassed a pizza delivery person over a dispute regarding a tip, and then uploaded a video of the event to YouTube.

There are hundreds more examples. So what do they have in common? First, they all resulted in legal terminations. Second, these posts were upsetting to the public. Angry consumers and media did not confront the individuals directly; instead, they swarmed the social media profiles and phone lines of their employers and demanded action — all while generating negative publicity.

All it takes is a single, momentary lapse in judgement by one employee to thrust your dealership into a social media firestorm. The good news is an immediate, public and appropriate response can quickly deescalate the situation. But does that mean you should automatically discipline or even terminate every employee who posts something you think is inappropriate? Not so fast. First, you must be sure you are not violating the National Labor Relations Act (NLRA).

Employee Rights

The 1935 National Labor Relations Act gives workers the right to organize unions and to protest working conditions. The National Labor Relations Board (NLRB) is an independent federal agency that enforces violations of the NLRA, commonly referred to as “unfair labor practices.” The NLRA gives employees the right to engage in protected concerted activities, which basically prevents employers from retaliating against employees who take action for their mutual aid or protection regarding terms and conditions of employment.

While the NLRB has historically focused on unionized workplaces, the use of social media has brought employment issues at non-unionized employers into the limelight. And in recent cases, the NLRB has taken an incredibly employee-friendly stance.   

So, when can’t you discipline someone for a social media post? When the post is connected to a term or condition of employment. An example would be an online discussion between employees about safety concerns at work or discriminatory pay practices.

Does that mean all workplace-related posts are off limits for discipline? No! If one employee is bullying or harassing another employee online, you can take action in accordance with your harassment policy. If an employee calls in sick, then posts a selfie waiting in line at the American Ninja Warrior tryouts that same day, you are probably OK to discipline that individual in accordance with your attendance policy. 

So far that seems pretty simple, right? The law hasn’t changed since 1935, so there is a ton of case law and clear-cut guidelines. But while the laws haven’t changed, the technology has, and so has the way the NLRB interprets the law and applies it to cases involving social media.

So, as a manager or dealer, what would you do if you saw one of your employees post an explicative-laden note about you on his Facebook page? You would probably fire him on the spot, right? Well, that’s what  catering company Pier Sixty LLC did when an employee did exactly that. The terminated employee, however, filed an unfair labor practice charge against Pier Sixty. And in a shocking decision, the NLRB sided with the employee. It did so for two reasons: First, because he mentioned a union vote in his post, it was connected to terms and conditions of employment. Second, the vulgar language used in the post was typically tolerated throughout Pier Sixty’s workplace. 

Similar situations have occurred in the dealership world as well. An employee at Lake Bluff, Ill.-based Karl Knauz BMW was terminated after posting a series of updates to Facebook, including pictures of an accident at a neighboring Land Rover dealership. The employee mocked a customer’s child after he accidentally crashed a vehicle into a pond. While the termination was upheld, the NLRB ruled that the existence of a “Courtesy Rule” in the Knauz handbook that banned disrespectful behavior was an unfair labor practice.

See, the NLRB ruled it was unlawful for the dealership to prohibit disrespectful behavior because a reasonable employee could interpret such a ban as encompassing his or her right to protest working conditions, as such protests would likely be viewed as disrespectful.

Staying Out of Trouble

Yes, social media offers a great way to connect with consumers, but it does present some issues for employers. Here are some tips for keeping your dealership out of trouble:

  • Draft a social media policy and have it, along with your handbook, reviewed by legal counsel. The NLRB is attacking handbook provisions that are overly broad and could be interpreted as chilling protected activities of your employees.
  • Train your employees and managers on your social media policy.
  • Only access public social media posts or posts that other employees freely bring to your attention. Never force an employee to give you his or her passwords, log on while you shoulder surf or accept a friend or connection request on social media.
  • When confronted with an emotionally charged post, take a moment to think before acting.
  • Keep an eye out for new NLRB rulings that may impact your interactions with employees.
  • When in doubt, involve your legal counsel.

Please note that I am not a lawyer and the information contained in this article is for general information purposes only and is not designed to be comprehensive. For legal advice, you must consult your own attorney.

Dave Druzynski is director of human resources for Auto/Mate Dealership Systems. Contact him at dave.druzynski@bobit.com

Comment

  1. 1. dee [ November 04, 2015 @ 01:16PM ]

    What about when a social media poster lies about his position at the dealership? Such as says he a "manager' when he is not?

  2. 2. Dave Druzynski [ November 12, 2015 @ 05:31AM ]

    Dee, it depends if this is a current or former employee and if they are misrepresenting themselves on a site where they interact customers versus strictly a personal site. If it is a former employee and they didn’t use the social networking site for business, there is little you can do. Some sites, like LinkedIn have a feature where you can report inaccurate information, but you have to decide if it is worth the effort. Now, if this is a current Sales Consultant that is using Social Media for business purposes, you can speak with the individual and ask them to change it. This is no different than someone using false information on a business card or email signature. Keep in mind that if you ask them to modify their title, you are on record that you have had access to their social media profile. If they later post information that is protected by law and accuse you of using it as a factor in an employment decision, it would be difficult to prove you didn’t have access to it.

 

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