Blog or post about work and you’re fired!

There has been a significant shift in the federal employment law climate that requires all dentists to reevaluate their employee policies, specifically with respect to how you manage or restrict communications among employees.

Guy On Facebook Dreamstime For Web

By Paul Edwards
February 24, 2014

There has been a significant shift in the federal employment law climate that requires all dentists to reevaluate their employee policies, specifically with respect to how you manage or restrict communications among employees.

In the last year, the National Labor Relations Act (NLRA) and its governing board has heightened its regulating activity and has been targeting employers for any violations of an employee’s “protected concerted activity” (PCA) or Section 7 rights. What this means is that the Board is going after businesses of all types (union or not, no matter the size) with a much broader interpretation of the Act, especially in the context of social media and online communications. Violations include overly broad social media and confidentiality policies that “chill” employees’ rights to discuss working conditions and pay.

Why do we bring this up? Within the last year, Applebee’s was under close scrutiny by the media 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, an action that quickly gained national attention.

This story is a good example of how fine the line is between what violates an employee’s PCA rights and how quickly a simple incident can snowball into a huge problem for employers.

Case study: Applebee’s
In this case, the employee’s actions (posting the receipt to Reddit) would likely not be considered PCA, as her actions were not directed at or discussing the company (Applebee’s) or her wages, but a commentary on the customer’s note on the receipt. Applebee’s was likely in their right to terminate her employment. If she had posted her own paycheck stub instead, for instance, that could easily be considered PCA and thus be protected.

However, despite the fact that the employee’s actions were not protected in this case, Applebee’s may still become what HR professionals and employment law attorneys across the country are calling “low-hanging fruit” (easy pickings).

Whether called in by the employee to dispute her termination, or simply due to this incident’s high-profile nature, the NLRB 's past behavior indicates this incident is grounds to start an investigation to check the restaurant’s employee policies. They need to find only one NLRA violation to cause huge problems for any company.

One such violation could possibly be Applebee’s social media policy. Below is what the company posted on their public Facebook page:

“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.”

This employee policy could very easily be considered overly broad under the NLRA (it may chill employees’ rights to communicate workplace conditions) based on prior NLRA rulings, and is hence a violation. This violation could cost Applebee’s thousands of dollars in the blink of an eye. Only time will tell.

What you should take away from this
Your social media or confidentiality policies, if they have not been revised in the last few months to address any possible NLRA violations, could be a massive liability for your practice.

Don’t make the mistake of believing that the NLRB only targets big companies, or ones that receive national attention. We have seen the NLRB target dental employers with less than fifteen employees, and they have required nothing more than a suspicion or a complaint to begin an investigation against the practice owner.

Protect yourself by having your employee handbook evaluated by HR and employment-law experts to identify any possible NLRA violations. Remember: It’s always better to be safe today than really sorry tomorrow.


Paul Edwards is the CEO and co-founder of CEDR Solutions. Since 2006, CEDR has been the nation’s leading provider of individually customized dental office policy manuals and HR solutions, helping dentists successfully handle employee issues and safely navigate the complex and ever-changing employment law landscape. Call 602-476-1418 or email info@cedrsolutions.com.

More in Practice Management