As a practice owner, what can you do if an employee disses you on social media? Consider the following scenario: You arrive at work, go to the staff lounge and pour yourself a cup of coffee to gear up for a busy day. So far; so good. But then you overhear a conversation about John, one of your technicians. John has been disgruntled about some new policies and protocols, and it has shown in his attitude and body language. Now you hear the dreaded words, “I can’t believe what he posted about Dr. Smith on his Facebook page.” Feeling a nervous twinge, you retreat quickly to your office, close the door and turn on your computer. A Google search of John’s name provides a link to his Facebook page. You hold your breath, click on the link and see the following public post: “Dr. Smith at the ABC Vet Clinic is a HORRIBLE boss. She books four appointments per hour, and I can barely keep up. I’m expected to keep the rooms clean and stocked at all times, but I am her only room tech. How can I restrain the animals, assist with the consults, and do all this other stuff??? The techs here need MORE BREAKS, MORE $$$, AND MORE RESPECT!” To make matters worse, you see that two of your other employees have added comments. One says, “YEEEAHHHH!!!!” The other chimes in with, “You can say that again!” Ugh. Your first instinct is to fire John for this post, which you find personally insulting and damaging to your business, and for getting your staff all worked up. The law could not possibly protect John from this irresponsible act, right? Wrong. The federal National Labor Relations Board (NLRB) views situations like this differently. Historically, the NLRB focused on unionized workplaces. In recent years, it has determined that certain aspects of federal labor law apply to all employers, unionized or not. And its focus, in this regard, has been on the rights of employees to air certain workplace grievances via social media. Specifically, under federal labor law, employees have the right to engage in “concerted activities” for their “mutual aid or protection.” The NLRB interprets this language to mean, in effect, that any activity geared toward improving terms and conditions of employment for a group of workers is generally protected. In our scenario, the NLRB could conclude that the Facebook post was a “concerted activity” because it aired a grievance on behalf of technicians as a group. In this regard, the post makes reference to the “techs here.” Additionally, the supportive comments from two of John’s coworkers may be viewed as further evidence that the post was intended to be concerted in nature. As for whether the post was for the “mutual aid or protection” of the practice’s technicians, it describes allegedly unfair working conditions and demands more breaks, pay and respect. As such, the NLRB would almost certainly conclude that the post also satisfies this part of the test for being a protected communication. So, what exactly does this mean for the practice? If you were to fire John for his Facebook post, then he, in turn, could file a charge with the NLRB that would allege that by firing him, the practice violated his federal labor rights. This would draw the practice into a potentially expensive and protracted legal proceeding. If the NLRB ruled in John’s favor—and it often does in cases like this—then it could order the practice to reinstate John, to provide him with back pay and to post a notice conspicuously in the workplace confirming that the practice will cease and desist from future such violations. Ouch. Fortunately, the law does not protect employees whose posts merely gripe about their personal circumstances. Thus, if John’s post said only, “Dr. Smith at the ABC Vet Clinic is a HORRIBLE boss. I don’t like the way she treats me,” then it might not be protected by federal labor law. The post could be construed as being individual, not collective, in nature. It also could be seen as the outgrowth of a personality clash, not as an effort to improve working conditions. The law also does not protect communications intended to disparage the employer’s products or services. To illustrate, if John’s post said, “Dr. Smith at the ABC Vet Clinic is a HORRIBLE vet who will surely maim or even kill your beloved four-legged friend,” then the NLRB would likely have no problem with the immediate termination of John’s employment. One tricky aspect of such situations is that the line between a protected communication and an unprotected one is often unclear and dependent on context. So, for example, the statement, “I don’t like the way Dr. Smith treats me,” might be protected if, in context, the alleged mistreatment was a failure to pay John and other techs required compensation, especially if John had been raising this issue with his colleagues at work. To help prevent situations like this from occurring, practice owners are encouraged to adopt NLRB-compliant social-media policies that specify the do’s and don’ts of online activity. Moreover, given that this can be a counterintuitive, highly nuanced area of the law, practice owners are encouraged to contact experienced employment counsel promptly in the event of Facebook “disses” and other social-media bombshells. Todd A. Newman, a Cornell Law School alum, works closely with veterinary practices. He is president and owner of a Salisbury, Massachusetts, law firm (www.toddnewmanlaw.com) that focuses on business, employment, labor and litigation matters. Ask Todd - Do you have questions about labor, employment or business laws affecting your veterinary practice? Submit them to questions@toddnewmanlaw.com. Selected questions may be addressed in upcoming articles.
