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by David James and Joe Schmitt

It was great to see many of you at the Marketing & Distribution Convention in St. Louis, where David James took the stage to discussed two unrelated but timely topics: regulation of employees’ social media activity, and the impact of state marijuana laws in the workplace. In response to your questions, we have put together some of the key takeaways.

Social Media

While employees do not generally have free-speech rights in the private sector, Section 7 of the National Labor Relations Act protects employees’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Recently, the National Labor Relations Board has applied Section 7 to employee activity on social media, such as Facebook. This has led to troubling outcomes and created something far from a bright-line rule.

At the convention, we walked through four case studies illustrating the intersection of Section 7 and social media. The first study involved two Facebook posts from a BMW salesman complaining about his employer. In the first post, he disparaged management for not making a big investment for a major sales event; effectively he called his boss “cheap” and believed management’s decision cost him sales commissions.

In the second post, the salesman joked about a car accident that occurred in the sales lot. Evaluating these two posts, the Board concluded that the first amounted to protected activity, as various salespeople had raised the same concern, and the salesman was able to draw a connection to his compensation. But the second Facebook post was unprotected, as the joke was the salesman’s alone, and it did not relate to the terms of his employment. Consequently, the dealership could not discipline or terminate the salesman on the basis of the first post but could take such action based on the second. Unfortunately, the employer lumped the two Facebook posts together, and therefore lost the hearing and was forced to bring the employee back and provide him backpay. 

This case study, and the other three reviewed during the session, resulted in various facts to consider when evaluating whether social media activity is protected. In particular:

• Does the post address the terms and conditions of employment?
• Does the post address a group concern, or only a gripe pertaining to the poster?
• Did other employees discuss the subject of the post, either before or after the social media activity?
• Did the poster have any intention of taking, or inducing, action?

Often in the social media context, there is an avenue to take action against an employee without triggering Section 7 liability, but this area is certainly a trap for the unwary. This served as an opportunity to remind attendees that talking through thorny issues like this with us is a benefit of your Association membership, and we welcome you to reach out.

Marijuana in the Workplace

We also discussed during the convention the rapidly evolving area of state marijuana laws. From a compliance perspective, each state’s law is critical. Many states have merely decriminalized marijuana (medical or recreational) but not addressed the use of marijuana in the workplace. In those states, employers remain free to deny employment to an applicant who tests positive, or discipline or terminate a current employee for a positive test.

In other states, marijuana statutes effectively create a new protected class, akin to race, sex, or disability. Statutes in Oklahoma and Connecticut, for example, prohibit discrimination against licensed medical marijuana users. In these states, courts have begun to find employers liable if the sole basis for termination is a positive drug test. Employers would need to find another basis to justify termination, such as possession on site or appearing for work under the influence.

At least 10 states protect marijuana users from adverse employment actions resulting from positive tests unconnected to use, possession, or being under the influence in the workplace: Alaska, Arizona, Connecticut, Delaware, Maine, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island. At the time of the convention, Illinois was on the list, but the state legislature is attempting to roll back workplace protections. This illustrates just how much this area of law is evolving in real-time. 

Regardless of local law, employers increasingly are considering removing marijuana from their list of tested drugs. We generally hear two rationales for doing so. First, some employers seek to track the societal acceptance of marijuana use. Second, some employers find it difficult to hire and retain employees when testing for marijuana. With low national unemployment, the labor market can be tight, particularly in rural communities, and some employers simply cannot stay fully staffed without accepting marijuana users who are otherwise responsible.

Pro-marijuana laws are gaining steam, and it seems only a matter of time before marijuana use, at least for medical purposes, is legalized at the national level. In the meantime, a patchwork of state laws requires employers to pause and take stock of local requirements before terminating (or refusing to hire) for testing positive for marijuana. And many employers are considering the propriety of testing for marijuana, even in states where doing so is not restricted.