Court Holds that Discharge of Employees for Facebook “Likes” was Unlawful
Many employers are unaware that the National Labor Relations Act may apply to their places of employment, even if the workforce is not unionized. For example, Section 7 of the NLRA guarantees that employees have the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . .” The NLRA also prohibits employers from interfering with, restraining or coercing employees in the exercise of these rights.
Notwithstanding employees’ rights to engage in concerted activity, employers generally have a right to prevent disparagement of their services or products. They also have a right to protect the reputation of their businesses. Thus, there is often tension between employees’ legal rights and the interest of the employer to prevent disparagement and protect business reputation.
The National Labor Relations Board (NLRB) and federal courts generally hold that employee communications are not protected under the NLRA if the criticisms made to the public are disconnected from any ongoing labor dispute and are sufficiently defamatory. Malicious comments by employees that are made with “knowledge of [their] falsity or with reckless disregard of whether [they] are true or false” are not protected.
In the case of Triple Play Sports Bar & Grille, the employer appealed the NLRB’s finding that Triple Play violated the NLRA for terminating employees who had used social media to disparage the employer’s business. The court reiterated that an employee’s Section 7 rights must be balanced against an employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of the business. An employee’s communications with the public may lose the protection of the NLRA if they are sufficiently disloyal or defamatory. However, the mere fact that an employee’s statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue.
The conduct at issue in Triple Play was one employee’s Facebook “like” of another employee’s statement: “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!!!!” A third employee wrote “I owe too. Such an As****e.”
The NLRB found that the Facebook activity in this case was “concerted” under the law because it involved three current employees and was “part of an ongoing sequence of discussions that began in the workplace about Triple Play’s calculation of employees’ tax withholdings.” The board also found that the Facebook activity was protected because the discussion concerned workplace complaints about tax liabilities.
The Federal Court of Appeals for the Second Circuit then reviewed whether the Facebook activity was “so disloyal or defamatory as to lose the protection of the Act.” The NLRB had found that there was no basis for determining that the employees’ statements were “maliciously untrue.”
The federal court noted that “almost all Facebook posts by employees have at least some potential to be viewed by customers.” But that fact alone is not a basis for an employer’s objection. The court further reasoned that the NLRA is violated if an employer’s internet or blocking policy would reasonably tend to chill employees in the exercise of their Section 7 rights. The inquiry must analyze whether “employees would reasonably construe the language to prohibit Section 7 activity.”
Conclusion and Guidance:
The NLRA’s balance between the employees’ right to engage in certain forms of concerted activity (even in a non-unionized work setting) and an employer’s interest in preventing disparagement of the business requires employers to walk a legal tightrope without reliance on their human intuition. In other words, while human intuition may suggest that an employer may discipline or terminate an employee who speaks ill of that employer, the NLRA grants significant rights to employees to engage in concerted activity. Human intuition may be a poor guide for employers when addressing disparaging statements made by employees through social media activity. Employers should approach discipline and discharge of employees for such conduct very carefully. They should formulate and review their internet/blocking policies to make sure that they do not violate the standards for concerted activities that are recognized under the NLRA. Finally, they should review with their attorney whether the employees’ statements go beyond what the law allows.
While Wisconsin becoming the nation’s 25th state to enact “right to work” legislation has made headlines, that legislation affects private-sector unionized workplaces only. Many employers may be unaware, however, that the National Labor Relations Act (NLRA) may regulate a place of employment, even if that workplace is not unionized.
The NLRA protects the rights of many private-sector employees to engage in concerted activity, with or without a union, when such activity is undertaken with respect to wages and working conditions, or to otherwise engage in concerted activity for mutual aid or protection in the workplace. That right is unknown to many employers. Employers may wrongly conclude that because they do not have a unionized workforce, they do not fall under the umbrella of the NLRA. Yet, the National Labor Relations Board, which generally enforces the NLRA, has become increasingly active in issuing rules and guidance that affect many employers in non-unionized workplaces. The risk to the unwary employer is that it may enact policies or procedures that violate the NLRA, subjecting the employer to complaints, actions, fines and penalties before the NLRB.
The NLRB takes a very protective view of the general right of all employees to engage in protected concerted activity for mutual aid and protection concerning pay and working conditions, whether or not the workplace is unionized. The NLRB has been active recently in finding that various employer policies unreasonably chill the employees’ exercise of such protected activity, at least in the estimation of the NLRB.
How can you begin to answer the question of whether your business is subject to the NLRA?
Here is a link that will get you started in determining whether the law applies to you: https://www.nlrb.gov/rights-we-protect/jurisdictional-standards. As an example, employers in retail businesses fall under the Board’s jurisdiction if they have a gross annual volume of business of $500,000 or more. Shopping centers and office buildings have a lower threshold of $100,000 per year. For non-retailers, jurisdiction is based on the amount of goods sold or services provided by the employer out of state or purchased by the employer from out of state. The Board takes jurisdiction when such annual inflow or outflow is at least $50,000. Note that employers who employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities, or prepare commodities for delivery are excluded from NLRA jurisdiction.
As an Employer, what should you do to not run afoul of the NLRA?
First, understand that the employee protections under the NLRA may apply to you and your business, even though your workforce is not unionized. Next, understand that the NLRB has been particularly active of late in issuing guidance to employers in the development of workplace policies. In particular, the NLRB has been focusing on social media policies and handbook policies in general, with a strict eye to determine whether any of the employer’s policies unacceptably chill the employees’ right to engage in concerted activity for mutual aid or protection. In subsequent articles, we will explore recent developments in the context of employer handbook policies recently found by the General Counsel of the NLRB to be unlawful.