September 5, 2013

SendGrid, Applebee’s & the NLRB: Oh My!

Last week, a story in the HR news caught my eye: SendGrid, a tech company, is feeling heat for

Adria Richards, a sendgrid employee

Adria Richards

firing a female employee because she tweeted a complaint about sexual jokes she overhead being made by two males. It appears she was at a PyCon conference and overhead the two men behind her, who worked for another company, making the jokes. In response, she tweeted their picture with a “not cool” comment. Five days later, SendGrid terminated her employment for “behaving inappropriately in tweeting the photo and accusation.”

SendGrid is defending their decision to terminate by saying the reason she was fired was not for reporting the issue, but for how she reported it. They stated that her actions have undermined her ability to work within that tight knitted community by publicly shaming the men on Twitter.

Now, whether you agree with their decision or not, there are some other factors that may come into play and cause serious problems for SendGrid, the largest one being the NLRB.

Who is the NLRB? It’s the National Labor Relations Board, an agency charged with administering the National Labor Relations Act. The Act protects employees’ rights to discuss their working conditions and salaries.  Although many believe the Act applies only to union companies, the Act actually applies to all businesses, union or not and regardless of size. Learn more about how the NLRA affects you here.

Recently, the NLRB has expanded its interpretation of the Act to protect employees’ usage of social media as a form of communicating their working conditions. Sound familiar? In fact, a couple months ago we wrote another article discussing a similar incident involving the Applebee’s restaurant chain, which involved social media, a waitress, a food receipt, a firing, and the NLRB. See our article here.

To summarize: In February, Applebee’s weathered a social media storm 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, which gained the wrong kind of national attention. Later, Applebee’s posted their confidentiality policy on their Facebook page to defend their decision. However, that policy contained language that some in the HR Community viewed as overly broad and might get them in trouble with the NLRB.

As you can see, a trend is developing, and not in favor of employers. Given the NLRB’s stance on employee protected activity using social media when it comes to expressing displeasure about one’s working conditions, in conjunction with the many protections in place for those who report incidents of harassment, we at CEDR are wondering how this is going to pan out for SendGrid…. Only time will tell.

At CEDR, we are big on having policies that let employees know that we encourage them to tell us when they’re having an issue and that we will not retaliate against them if they do. We like policies like these because they’re fair, while at the same time they provides an opportunity for employers to avoid big trouble by giving them an opportunity address the issue.

As always, if you have a question about what I’ve discussed, or if I’ve raised a concern for something happening in your practice, call us at 866-414-6056. If we can, we will help you at no charge.

Friendly Disclaimer: This information is general in nature. Not intended to replace good counsel about a specific issue with either your attorney or your favorite HR expert.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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