When Does An Employee’s Post Go Too Far?
How much can you, or should you, discipline employees for comments they make on their own social media accounts, like Facebook? That is the question I have been asking myself since reading this article in the CU Times reporting that MTC Federal Credit Union based in Greenville, South Carolina fired one of its loan officers for using a racial slur on Facebook.
The CU Times reports that Gerri Cannon admitted to posting the slur, but also contended that she is not a racist and has retained a lawyer. As I like to point out, retaining a lawyer doesn’t mean you have a case. Ms. Cannon’s dilemma provides an important teaching moment for credit union employers and employees alike.
The first thing I always hear in these cases is that the employee’s free speech rights are being violated. But they aren’t. The First Amendment restricts government conduct, not the conduct of private citizens. Hudgens v. N. L. R. B., 424 U.S. 507, 513, 96 S. Ct. 1029, 1033, 47 L. Ed. 2d 196 (1976). This means that Ms. Cannon has a right to post just about anything she wants on Facebook and MTC FCU has every right to fire her for it.
The second question that always gets raised in these situations is that the Employee Handbook didn’t ban the specific conduct. But to answer this question, we need to take a little detour. As most of you know, New York, like most other states, is an at-will employment state. This means that unless otherwise specified, employment is for an indefinite period of time and may be “freely terminated by either party at any time for any reason or even for no reason.” Lobosco v. New York Tel. Co., 96 N.Y.2d 312, 316, 727 N.Y.S.2d 383, 751 N.E.2d 462 (2001). There is a misconception on the parts of employees and employers that a handbook creates a contract which modifies at-will employment. And, in fact, there have been cases in which a poorly drafted handbook restricted the ability of employers to get rid of an employee. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465-66, 443 N.E.2d 441, 445 (1982).
But this is very much the exception to the rule. As a federal court noted earlier this year New York’s Court of Appeals has pointed out, “[r]outinely issued employee manuals, handbooks, and policy statements should not be lightly converted into binding employment agreements. This is especially true where the handbook contains an express disclaimer.” Rumsey v. Ne. Health, Inc., 89 F. Supp. 3d 316, 340-41 (N.D.N.Y. 2015), aff’d, No. 15-833, 2016 WL 336196 (2d Cir. Jan. 28, 2016), as corrected (Jan. 29, 2016).
Does this mean that a credit union can just ignore its handbook? Not at all. A more typical case than the one involving MTC FCU involves a discharged employee who argues that she was unfairly disciplined by her employer because of her race. For instance, let’s say that a credit union routinely looks the other way when it hears about inappropriate comments on employee Facebook pages. If that same credit union turns around and fires a pregnant or minority employee who makes such a comment, the unequal treatment can be used as evidence of discrimination on the part of the employer. Redford v. KTBS, LLC, No. 5:13-CV-3156, 2015 WL 5708218 (W.D. La. Sept. 28, 2015), on reconsideration in part, No. CV 13-3156, 2016 WL 552960 (W.D. La. Feb. 10, 2016).
One more thing to keep in mind when monitoring employee social media conduct is to make sure you are not violating federal labor laws. As I’ve mentioned in previous blogs, the NLRB is aggressively protecting the right of employees to engage in “concerted activity” using social media. This means that an employee’s complaints about his workplace may in fact be protected. It also means that you must be sure that your social media policies are not so poorly written that they can be read as prohibiting employees from taking to Facebook to talk about workplace concerns.
Needless to say this is one of those fast evolving areas that creates confusion and legal actions. This is one of those areas where a review of your handbook and a call to your attorney make a lot of sense.
On that note, enjoy your day.