TO POST OR NOT TO POST

By Susan T. Roberts

Social media postings are fraught with risk for both employers and employees. Rulings issued by the National Labor Relations Board in the last few years have left employers wondering whether they have any rights at all to regulate, monitor and discipline employees for what they post on Facebook and other social media without running afoul of the protected activities provisions of the National Labor Relations Act ("NLRA"). Employees may wonder how far they can go in their social media postings as they run the risk of what they say online will draw their employer's attention.

The NLRA provides protections for both union and non-union workers who take part in "concerted activity" (talking about their employer or work situation or wages) with their co-workers. If an employee's activity on social media can be perceived as protected concerted activity, the employer may violate the NLRA if the employer disciplines the employee for the conduct.

There are limits, however, as to how far an employee can go with their social media posts if the posts are likely to harm the employer's reputation. This month, the Third Circuit Court of Appeals upheld a ruling by a judge of the United States District Court for the Western District of Pennsylvania that held that BNY Mellon did not violate Title VII of the Civil Rights Act of 1964 when it fired a Mt. Lebanon woman because of a social media posting.

The Plaintiff, a senior control analyst for BNY Mellon, was fired after she posted a comment on a news article on Facebook about a man who faced criminal charges for driving his car into a crowd of protestors protesting the death of Antwon Rose, Jr., who was killed by an East Pittsburgh police officer. In response, the Plaintiff posted, "Total BS. Too bad he didn't have a bus to plow through." Her personal Facebook account privacy settings were set to "public" so her comments could be seen by anyone. Her Facebook account also identified her as "VP at Bank of New York Mellon."

BNY Mellon fired the Plaintiff upon discovering her comment and she sued. The Plaintiff, who is white, claimed race discrimination under Title VII. The Plaintiff said that the bank's decision to retain two Black employees who also made controversial posts was evidence of discrimination. The Third Circuit Court found that the Plaintiff's co-workers did not say anything as extreme as the Plaintiff did in their social media posts. "What matters most is that [the Plaintiff's] social media post was far more egregious – and far more likely to harm BNY Mellon's reputation," wrote Judge Cheryl Ann Krause. "Neither post [of the co-workers] encouraged mass violence against protestors, as [the Plaintiff's] did."

The bottom line: when employees use platforms such as Facebook and Twitter, they may legally engage in protected concerted activity. If, however, an employee's postings cross the line and fall outside of concerted activity, careless use of social media can be a legal basis for termination.