"Blog or post about work and you're fired!” (or how to catch the NLRB's attention)

June 25, 2013
There's been a significant shift in the federal employment law climate that requires dentists to reevaluate their employee policies, specifically with respect to how they manage and/or restrict communications among employees.

by Paul Edwards

There's been a significant shift in the federal employment law climate that requires dentists to reevaluate their employee policies, specifically with respect to how they manage and/or restrict communications among employees.

In the last six months, the National Labor Relations Act (NLRA) and its governing board has heightened regulating activity and has been targeting employers for any violations of an employee's "protected concerted activity” (PCA) or Section 7 rights.

What this means is that the Board is going after businesses of all types (union or not, and no matter the size) with a much broader interpretation of the Act, especially in the context of social media and online communications. Violations include overly broad social media and confidentiality policies that "chill” employees' rights to discuss working conditions and pay.

Why do we bring this up? Within the last few months, Applebee's restaurant chain has been under close scrutiny by the media due to an incident with one of its employees. The employee posted a picture of a customer's food receipt (with the customer's name visible) on the popular social sharing website Reddit. In response, Applebee's terminated the employee for violating its social media and confidentiality policies. This action quickly gained national attention.

This story is a good example of how fine the line is between what does or does not violate an employee's PCA rights, and how quickly a simple incident can snowball into a huge problem for employers.

Case Study: Applebee's

In this case, the employee's actions (posting the receipt to Reddit) would likely not be considered PCA, as her actions were not directed at or discussing the company (Applebee's) or her wages, but a commentary on the customer's note on the receipt. Applebee's was likely within its right to terminate her employment. If she had posted her own paycheck stub instead, for instance, that could easily be considered PCA and thus be protected.

But, despite the fact that the employee's actions were not protected in this case, Applebee's may still become what human resources professionals and employment law attorneys are calling "low-hanging fruit” (a.k.a., easy pickings).

Whether called in by the employee to dispute her termination, or simply due to this incident's high-profile nature, the National Labor Relation Board's past behavior indicates this incident is grounds to start an investigation into the restaurant's employee policies. The NLRB needs to find only one NLRA violation to cause huge problems for the company.

One such violation could possibly be Applebee's social media policy. Below is what the company posted on its public Facebook page:

"Employees must honor the privacy rights of APPLEBEE's and its employees by seeking permission before writing about or displaying internal APPLEBEE'S happenings that might be considered to be a breach of privacy and confidentiality. This shall include, but not be limited to, posting of photographs, video, or audio of APPLEBEE'S employees or its customers, suppliers, agents or competitors, without first obtaining written approval from the Vice President of Operations…. Employees who violate this policy will be subject to disciplinary action, up to and including termination of employment.”

This employee policy could easily be considered overly broad under the NLRA (it may chill employees' rights to communicate workplace conditions) based on prior NLRA rulings, and hence a violation. This violation could cost Applebee's thousands of dollars in the blink of an eye. Only time will tell.

What you should take away from this

Your social media and/or confidentiality policies, if they have not been revised in the last few months to address any possible NLRA violations, could be a massive liability for your practice.

Do not make the mistake of believing that the NLRB targets only big companies, or ones that receive national attention. We have seen the NLRB target dental employers with less than 15 employees, and the Board has required nothing more than a suspicion or a complaint to begin an investigation against the practice owner.

Protect yourself by having your employee handbook evaluated by human resources and employment law experts to identify any possible NLRA violations. (You can request a complimentary evaluation by visiting www.cedrsolutions.com/DE.) Remember: It's always better to be safe today than sorry tomorrow.

Paul Edwards is the CEO and cofounder of CEDR Solutions. Since 2006, CEDR has been a leading provider of individually customized dental office policy manuals and HR solutions, helping dentists successfully handle employee issues and safely navigate the complex and ever-changing employment law landscape. Call 602-476-1418 or send an email to [email protected].

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