Employers, Employees and Social Media — the NLRB Weighs in

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What’s come to be known as “social media” has successfully infiltrated almost all aspects of business. Many businesses now see it as a marketing essential, while others consider it a key information source.

Many businesses have not only developed social media policies and guidelines for their employees (vis a vis protecting proprietary business information), but also have begun monitoring workplace activities in order to keep tabs on what its employees are doing and saying about their workplace or employer. Not surprisingly then, disputes have arisen concerning limits for such employee oversight — when is an employer crossing the line into actionable violation of employee rights? Similarly, what are the limits on protected employee behavior?

In its most recent opinion on the subject, the National Labor Relations Board (NLRB) found that Triple Play Sports Bar, a non-union employer, twice violated Section 7 of the National Labor Relations Act (the“Act”) by (1) firing two employees for participating in certain Facebook postings (one with a simple “Like” click), and (2) promulgating a Social Media Policy that was, on its face, illegal under the Act. One fundamental tenet of labor law is that employees have the right to “form, join or assist unions” and to “engage in other concerted activities for their mutual aid and protection.” Employers simply cannot interfere with, restrain or coerce employees in exercise of these Section 7 rights, without running afoul of the NLRB, which is exactly what Triple Play did when it fired the two employees in question.

What exactly happened in this case? Suspecting that Triple Play had not withheld proper state income taxes from her paychecks, a former Triple Play employee posted a negative comment blaming Triple Play’s owners for her state income tax shortfall. The Facebook conversation escalated as other employees joined in, including mention of reporting the situation to the NLRB. At one point, a current employee simply responded “Like,” while another posted that she too owed state taxes and called one of the owners “an a--hole.” Triple Play ultimately confronted the two employees about these posts and fired them for violating the company’s Internet/Blogging Policy, which among other things precluded “inappropriate discussions about the company, management and/or co-workers.”

It was undisputed that the postings were protected activity, because the ongoing discussion related to terms and conditions of employment (underreporting of income tax) and had evolved to the point where employees planned to raise the issue at a staff meeting (group action). The NLRB rejected Triple Play’s argument that “liking” certain commentary makes one responsible for other defamatory statements posted in a discussion and found that the derogatory description of an owner was a non-actionable personal opinion. Ultimately, the NLRB balanced employees’ Section 7 rights with the alleged inappropriate employee conduct, to determine whether such conduct fell outside of protection from the Act, finding that the employee conduct was, in fact, protected under Section 7.

The NLRB also analyzed the employer’s policy, finding that its above-quoted language was overly broad and not comparable to restrictions in other policies which the NLRB has upheld. Specifically, the policy was in violation of the Act because employees reading it could reasonably conclude that the policy’s “prohibition against inappropriate discussions” could “encompass [prohibition of] ‘discussions and interactions protected by Section 7.’” The NLRB reinforced its conclusion by citing the two employee terminations as “an authoritative indication of the scope of [Triple Play’s] prohibition.”

The Triple Play decision reinforces key “Takeaways” for employers:

Employers can become upset (and impulsively so) when they observe public expression that they view as insubordinate, disloyal or disparaging. Depending on the context (e.g., group action on a social media site addressing terms and conditions of employment), today’s NLRB may not support adverse employment action and find that the Act’s Section 7 scales don’t favor the employer who takes such action. If interested in further discussion on this topic, please contact Fred Mendelsohn at 312/840-7004 or fmendelsohn@burkelaw.com.

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