Frank Lovece in Board Operations on September 6, 2013
Note: To keep it simple, we're assuming a non-union employee.
Let's start with easy ones:
Yes, you can fire him. In fact, these real-life tweets by EMT Joseph Cassano, son of New York City Fire Commissioner Salvatore Cassano, led to his being forced to resign in March.
Maybe you can fire him, maybe you can't. Partly it depends on whether fellow employees respond. The phrase above is based on an actual Facebook post by an employee of a Connecticut company who was fired for writing, among other things, "love how the company allows a 17 [the company's term for a psychiatric patient] to become a supervisor." Other employees responded to her post in kind. The company, however, said the employee had violated a company policy against disparaging the company "in any way" on social media, which the National Labor Relations Board, to whom this case went, found overly broad.
The company eventually settled with the NLRB, which ruled that employees have a right to complain about their job with other employees. As NLRB attorney Lafe Solomon said, "Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
Except when they don't: In 2011, the NLRB didn't object to Wal-Mart Stores Inc. disciplining a customer-service rep in Oklahoma who posted, "Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit." As in the above case, co-workers chimed in supportively. Yet here the NLRB said that since the rep wasn't seeking "to initiate, induce, or prepare for group action" and wasn't bringing "group complaints to the attention of management," that this wasn't what's called "concerted activity."
The lesson is that if an employee complains, he has to complain about workplace conditions in general, and not just about his own job. Although the worker here did seem to be complaining about workplace conditions. Maybe the lesson is you get a break if you're Wal-Mart. Your garden-variety co-op or condo board probably wouldn't.
No, you can't fire him. There's venting, and then there's complaining about workplace safety and company policies. As the NLRB reaffirmed in April, regarding workers who posted the above (substitute "California" for "New York" and "mom" for "brother") amid other workplace-safety comments, employees can't be "[d]ischarging or otherwise discriminating against any employee for engaging in protected concerted activity," which includes unionizing, obviously, and an employer can't have "a rule that forbids employees from disclosing wages and compensation to each other or to any third party."
You probably can fire him. At least if it goes viral. That's what happened to a Chili's waitress in Oklahoma who posted on her Facebook page, "Stupid Cops better hope I'm not their server FDP," those initials being an Internet shorthand for "F--- the police." Law enforcement sites around the country picked it up and the post got over 400 mostly negative comments. The restaurant, part of large national chain, let the woman go, saying, "With the changing world of digital and social media, Chili's has Social Media Guidelines in place, asking our team members to always be respectful of our guests and to use proper judgment when discussing actions in the work place."
These four examples only touch on the multitude of ways boards and staff can get into trouble over social-media comments and reactions to them. But hopefully they've created awareness and could perhaps keep you from rushing into rash action. And remember: This field is still evolving, so while your regular board attorney may know the landscape fine, it pays to bring in a social media-savvy labor lawyer before firing anyone and possibly opening yourself to big fines and more.
Co-op and condo board business broken down into bite-sized bits - 2 stories each week. Read now on all digital devices.
A free digital resource for co-op/condo board directors. Published twice a month. Read now on all digital devices.