by Tammy Binford
It should be an easy call: An employee commits an intentional act that violates company policy and embarrasses a customer. Most employers would agree that discipline or termination is appropriate, but other considerations can come into play. If the workplace incident goes viral, for example, the situation gets more complicated. Add to that the element of how a federal agency might react to the employer’s policy, and a perfect storm is likely to rage.
The Internet lit up in early February when a member of the waitstaff at an Applebee’s restaurant in St. Louis was fired after she snapped a picture of a customer’s bill and posted it on Reddit.com. Personal information in the form of the customer’s name was clearly visible on the signature line of the bill in the photo.
The customer, Alois Bell, a church pastor, had written a note on the bill commenting on the restaurant’s practice of adding an 18 percent gratuity to bills for large parties. She wrote “I give God 10%. Why do you get 18?”
When a waitress—not the one who waited on the pastor’s party—posted the photo, Bell found out and complained to the restaurant’s management. Shortly after, waitress Chelsea Welch was fired. Bell has since said she regrets writing the note, and Welch’s plight has prompted an outpouring of support.
Applebee’s turned to Facebook to present its side of the story. The explanation includes a portion of the St. Louis franchisee’s employee handbook and its social media policy, which was quoted in the Facebook statement as saying:
“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.”
Social media policies
Employers use social media policies to protect their reputations and the privacy of employees, customers and clients. But some of those policies have run afoul of the National Labor Relations Board (NLRB), which has been scrutinizing policies to see if they violate employee rights guaranteed under Section 7 of the National Labor Relations Act. Employees covered under the Act are entitled to engage in “concerted activities,” such as taking steps to bring in a union and discussing wages and other terms and conditions of employment.
Elijah Yip, a partner at Cades Schutte LLP in Honolulu, Hawaii, and the chair of the firm’s Digital Media and Internet Law Practice Group, sees the part about employees needing permission before making posts as a potential problem.
“For example, say an employee posts a photo of another employee in the picket line in order to rally more employees for a strike,” Yip says. “That’s clearly concerted, protected activity. Requiring the employee to first ask the employer’s permission before posting the picture would have a chilling effect on concerted, protected activity.”
The policy might be OK, Yip says, if it contains a “savings clause,” a disclaimer making clear that the policy shouldn’t be taken as prohibiting employees from exercising their rights under the law. (He gives tips on savings clauses in his LegalTXTS blog post, “Social Media Superhero? – Tips For Using a Savings Clause to Rescue Your Social Media Policy.”) Yip warns that savings clauses aren’t magic and can be tricky to write so that they measure up to NLRB standards.
Peter D. Lowe, a partner with Brann & Isaacson in Lewiston, Maine, agrees that the policy’s wording, particularly the part that requires permission before company “happenings” are posted, may be a problem. “It is clear to me that Applebee’s has the right to protect the customers’ privacy, and the posting of customer information online is an obvious and serious violation of customer privacy,” he says. “However, the NLRB could claim that the policy could be interpreted by employees as restricting them from discussing internal ‘happenings’ that are protected activities.”
Advice for employers
The Applebee’s case has prompted many to question whether the employee should have been fired, with some saying the handbook warned that violating the policy could be grounds for termination and others saying the employer was too harsh. The waitress has said she was fired without a written warning.
Lowe says he represents retailers and understands the importance of protecting customer privacy. “The problem with Applebee’s position here, in the court of public opinion, is the fact that the customer’s actions … make the customer very unsympathetic and cast the waitress as the victim,” he says.
Lowe says when he advises clients on termination, he encourages them to consider how it will be judged by others. “This is by no means the decisive factor, but it should always be part of the decision-making,” he says.
In some cases, a frank discussion with an employee can solve a problem, Yip says. “Sometimes employees don’t appreciate the severity of their online conduct until someone calls them out on it,” he says. “The anonymity factor of the Internet definitely emboldens employees to act in ways they otherwise would not act.”
Yip says he advises employers to monitor social media activity about their company or brand so that they are quickly alerted to employee activity that needs to be addressed. Employees also need training on how to handle social media, and using real-life examples is useful.
“Talking about rules in a vacuum often doesn’t get the point across,” Yip says. “And in terms of protecting the company’s image, it’s OK for a company to control online interactions that purport to be made on behalf of the company. The NLRB has not outlawed that. The problem is when companies try to control what their employees say as individuals.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.