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Thursday, August 28, 2014

Employees' Facebook Discussion Protected by Labor Laws

On August 22, 2014, the National Labor Relation Board issued a new decision involving employees and social media.  In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the NLRB ruled that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by the National Labor Relations Act (“Act”).  The Board also held that the employer’s internet and blogging policy violated the Act.

In 2011, at least two employees discovered that they owed more in state income taxes than they expected.  Employees discussed the situation at work and complained to their employer, Triple Play.  Prior to a staff meeting to discuss the employees’ issues, a former employee posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!
Several Facebook friends posted comments in response to the status update, including two of Triple Play’s employees.  One employee commented, “I owe too.  Such an asshole.”  A second employee “Liked” the former employee’s status update, but posted no comment. 
When Triple Play discovered that two of its employees had participated in the Facebook discussion, it fired them.  The employees challenged their termination, and the NLRB ruled in their favor, finding that the employees were engaging in activities protected by the Act.  According to the NLRB, the employees’ comments and "like" in response to the Facebook post constituted a dialogue among employees about working conditions that was protected by the Act. The NLRB determined that the evidence did not establish that the discussion was directed to the general public. Although the record did not establish the former employee’s privacy settings on Facebook, the NLRB noted that the comments were posted on an individual’s personal page rather than a company page providing information on its products or services. The NLRB concluded that the employees’ comments were not "so disloyal as to lose the Act’s protection" because they did not disparage their employers products or services, or undermine its reputation. The Board also held that the comments were not defamatory, but simply a statement of a negative personal opinion of Respondent’s owner.
The NLRB also found that the employers’ Internet/Blogging policy in the employee handbook violated the Act because it was overbroad and unlawfully chilled employees in the exercise of their section 7 rights. The policy warned that "engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment."

Employers need to tread carefully in disciplining employees for their social media activities, as we have reported before.  They should also review and update their personnel policies to make sure that they are not inadvertently “chilling” their employees protected rights.

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