Tribal employers must navigate the difficult question of whether an employee should be educated, disciplined or terminated for statements in social media posts.  When this issue arises in your workplace, do you have a framework for determining when the tribe should take action and when the tribe should not.  This article is based, in part, from the Workforce Bulletin, a blog published by law firm Epstein Becker Green.  More specifically, by lawyers Nancy Gunzenhauser, Lauri Rasnick and Susan Gross Sholinsky.  In their blog they provide a series of questions that will assist in determining when employment action is reasonable.

Employers that receive demands to fire someone on the basis of remarks or a social media post should pause and consider the following questions:

  1. Who is complaining?
    • Is the complaint from a co-worker/colleague, a customer, an organization, or an unnamed anonymous source?
  1. What is the nature of the complained-of content?
    • If it is offensive, how so?
    • Is it violent, graphic, or profane?
    • Is it counter to your (the employer’s) values?
    • Is it political?
  1. What is the context of the offending content?
    • Was the commentary made in person or online?
    • If online, on which platform(s) is (or was) the content visible?
    • Was the content posted during work hours or via a work-related device?
    • Was the content re-posted? If so, by whom?
  1. Did the employee tag or refer to the employer in any way? Relatedly, how senior is the employee? Are they sufficiently high up in the company so that it would be reasonable to believe that they are representing/expressing the company’s position?
  1. What actions have been taken by the employer in similar circumstances, if any (e.g., reprimand, training, termination)?

I would add a sixth question of whether the employee is a member of the tribal employer or not.  If an employee is both a member of the tribe and an employee of that tribe, should members give up their right, as a member, to criticize their tribe and its leadership just because they are employed?  Some will answer yes and some will answer no. 

In evaluating whether to make an employment decision in response to a social media post, also remember these important points:

The United States Constitution does not apply to tribes and therefore the First Amendment, that protects the freedom of speech, does not apply.

The Indian Civil Rights Act applies to tribes and there are due process and equal protection provisions in ICRA that support fair play by tribal employers.  How ICRA may or may not apply to a tribal employer’s decisions is a more complicated question.

The National Labor Relations Act (NLRA) may, or may not, apply to tribal employers. The NLRA protects speech that could be construed as “protected concerted activity,” e.g., bringing group complaints to the employer’s attention or trying to induce group action.  The NLRB has pressed some tribal employers that take employment action against employees that have posted on social media pursuant to these Section 7 rights under the NLRA.

The doctrine of at-will employment generally governs employment relationships not subject to a contract or a collectively bargained agreement. At-will employment means that both parties to an employment relationship can end that relationship at any time, for no reason, or for any reason that is not unlawful. Unlawful reasons include discrimination and retaliation.

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Richard McGee

richard@richardmcgeelaw.com

612-812-9673