by Michelle D. Craig
Partner | Adams and Reese LLP
Question: One of my supervisors brought to my attention the Facebook page of one of my employees. This employee was reprimanded yesterday because she engaged in insubordinate behavior. After the reprimand, she went on her Facebook page and made very disparaging comments about the company and then wrote “Fire me. Do it. Make my day.” At this point, I would like to do it. Can I? Do I have anything to worry about if I do fire her?
The first question is “do you have a social media policy?” If so, check to see if she is violating it with her statements. If so, she can be fired on that basis. If not, you probably can still terminate her because the National Labor Relations Act, the law that is most implicated in social media, does not protect “griping” by an employee. It does protect “concerted activity for mutual aid or protection” of the employee or employee(s).
Activities that an employee may engage in for mutual aid and protection may be complaining about wages or the terms and conditions of employment or calling other employees to act about some employment issue. The National Labor Relations Board has concluded, however, that complaining and/or cajoling does not constitute “concerted activity.” Accordingly, she could probably be fired. However, if other employees complain with her on her page or if other employees “like” her comment, then firing her for her comments may open the company up to the risk of a lawsuit.
Question: I have two people who volunteer a lot of time with my fledgling company. I am a small company and I appreciate all of the help they provide. One of my employees stated that the volunteers perform the same work as the employees. However, the volunteers are not paid. She said she would be mad about that if she were a volunteer. I heard about this comment second-hand. Now, I am concerned that she is right. Do I have an obligation to pay someone who freely volunteers his or her time?
The Department of Labor has recognized that “volunteers” are excluded from FLSA coverage in two circumstances: 1) volunteers who provide services for public agencies (i.e., federal, state, or local government agencies) and 2) volunteers providing services for private, not-for-profit organizations. If you fit into one of these categories, you are fine. However, if you do not, you may want to consider limiting their time with your company and giving them tasks that are very different from those that your employees are doing. You goal should be to have a clear line drawn between what the volunteers do and what your employees do.
The information contained in this column does not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. The sending of this newsletter is not a privileged communication and does not create a lawyer/client relationship. Michelle D. Craig is a Partner in the Labor and Employment Practice Group at Adams and Reese LLP. She can be reached at firstname.lastname@example.org; 504-585-0441; www.adamsandreese.com. Please send her your questions.