"tantrums" Aside, the Law Leans Toward the Employee in Issues of Social Media and Free Speech

• Publication year: 2017
• Author: Kimberly Buffington and Sujeeth Rajavolu

"Tantrums" Aside, the Law Leans Toward the Employee in Issues of Social Media and Free Speech*

Kimberly Buffington and Sujeeth Rajavolu

Ms. Buffington is a trial lawyer with significant experience in insurance coverage disputes and business and intellectual property litigation. She has tried or arbitrated policyholder insurance coverage claims, breach of contract actions involving the division of insurance proceeds, commercial actions, and copyright infringement cases. Ms. Buffington co-heads the Los Angeles Summer Associate Program and serves on her firm's Hiring and Pro Bono Committees.

Sujeeth Rajavolu attends the University of California, Irvine law school and was a summer associate at Pillsbury Winthrop Shaw Pittman LLP.

Whether or not your friends and family get a kick out of your misery at work, that online post of yours might tick off your employer. But what rights do employers have to restrain their employees from complaining about them online? Can employers punish employees for posting their grievances online? How do courts differentiate between "protected" and "tantrum" posts? What is the Government's view on employees' social media postings? In 2011, Pier Sixty LLC fired Her-nan Perez for labeling his supervisor a "nasty M.F." and using similarly profane language against his supervisor's family in a Facebook post that ended with a plea to "Vote YES for the UNION." In a 2016 decision, the Second Circuit enforced the National Labor Research Board's (NLRB) decision and found that the employee was protected under the National Labor Relations Act (NLRA) because the post was in relation to a union-related activity.

In 2015, a Chipotle employee James Kennedy tweeted "nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?" in response to a customer's tweet "[f]ree chipotle is the best thanks." In another instance, he tweeted "[s] now day for 'top performers' Chris Arnold?" when the hourly workers were made to work on snow days. In yet another tweet, referring to the fact that Chipotle charges for guacamole, he tweeted "it's extra not like #Qdoba, enjoy the extra $2." Chipotle asked Kennedy to delete the tweets because they violated the company's social media policy. Chipotle's social media policy provided that employees could not make disparaging remarks about the company. The NLRB again sided with the employee and found that the company's social media policy violated the employee's NLRA protection.

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