CFO firing after Chick-fil-A post shows what's protected and what’s not in social media speech
Phoenix Business Journal by Mike Sunnucks, Senior Reporter
Date: Tuesday, August 14, 2012, 1:28pm MST
Mike Sunnucks
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When Tucson CFO
Adam Smith was fired after he berated an Arizona Chick-fil-A drive thru attendant over the company’s opposition to same-sex marriages and posted it on YouTube, his now-former employer felt it had legal grounds for the termination because Arizona’s at-will employment laws and Smith didn’t live up to expected standards for company officers.
But if Smith was a Chick-fil-A employee complaining on YouTube or Twitter about work hours or if he had complained about his own former employer — medical device maker Vante Inc. — he could actually have federal protections from being fired or punished via a 77-year-old New Deal law protecting union organizing.
The
National Labor Relations Board has started going after employers who sanction their workers for complaining about their bosses, pay or working conditions on social media sites, said
John Balitis, an employment law expert and attorney with the Fennemore Craig PC law firm in Phoenix.
Balitis said the NLRB believes social media interaction between rank-and-file workers can be protected under the National Labor Relations Act, which protects workers’ ability to communicate with each other. The NLRA was approved in 1935 with the aim of protecting workers from being fired for talking about union organizing.
The Chick-fil-A issue will end up playing itself out in court, but could spark more employee complaints against employers over social media policies and dictate how those polices are crafted and enforced going forward.
Balitis points to a 2010 case where the NLRB sued a Connecticut company after it fired a worker for complaining about her boss on Facebook. The company ended up settling that complaint last year.
Balitis expects to see more cases nationally as companies craft and dictate social media policies and sometimes check up and discipline workers for their Twitter and Facebook posts. “There will be more complaints,” Balitis said.
He said the social media complaints through the NLRB are similar to federal discrimination lawsuits where a worker will complain to the
U.S. Equal Employment Opportunity Commission which will then sometimes sue the employer on their behalf.
A May 30 NLRB report looked social media policies and restrictions developed by employers that restricts online posts or caution employees about their online activities and communications, including those related to the workplace. The NLRB memo says many of those social media policies could be construed as unlawful under Section 7 of the NLRA, which gives workers the right to communicate with each other.
The Chick-fil-A situation down in Tucson is a different animal.
Adam Smith grabbed national attention when he videotaped and then posted a visit to a Chick-fil-A drive-thru where he criticized the fast food chain over comments made by CEO
Dan Cathy in opposition to gay marriage. Smith later apologized to the Chick-fil-A worker,
Rachel Elizabeth, and also posted that on YouTube.
In that same apology post, Smith said Vante fired him after receiving hundreds of complaints and even some threats from those unhappy with his first post.
The Arizona attorney that advised Vante on the Smith firing said C-level executives are held to higher standards when they represent the company publicly and those are part of their fiduciary duties.
Joe Kroeger, a labor and employment attorney for the Snell & Wilmer LLP law firm in Tucson, said he’s provided legal advice and counsel to Vante on previous occasions. Kroeger said he was not aware of an employment contract for Smith.
Balitis said sometimes those contracts will include behavior clauses that be used as grounds for termination or discipline.
Kroeger cited client privilege in not getting into some specifics of Vante’s action. But he did say Arizona’s at-will employment laws give employers legal cover in many dismissals.
Montana is the only U.S. state without an at-will law, which allows employers to fire workers without cause. Most other countries’ legal systems require some kind of cause for a termination, according to the National Council of State Legislatures.
Kroeger also said employees need to realize their First Amendment rights aren’t universal in the workplace or their professional lives, and they have to be aware that their social media and online activities can impact their careers and their employers.
Smith never disclosed his employer or profession during his original interaction, but those upset with this actions found his company and title and complained to Vante. The company did not respond to requests for additional comments on this story, nor did Smith.
Vante statement on Adam Smith (Aug 2.):
Vante regrets the unfortunate events that transpired yesterday in Tucson between our former CFO/Treasurer Adam Smith and an employee at Chick-fil-A. Effective immediately, Mr. Smith is no longer an employee of our company.
The actions of Mr. Smith do not reflect our corporate values in any manner. Vante is an equal opportunity company with a diverse workforce, which holds diverse opinions. We respect the right of our employees and all Americans to hold and express their personal opinions, however, we also expect our company officers to behave in a manner commensurate with their position and in a respectful fashion that conveys these values of civility with others.
We hope that the general population does not hold Mr. Smith’s actions against Vante and its employees.
Mike Sunnucks writes about politics, law, airlines, sports business and the economy
