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.
Ordinarily, an employer must pay wages to an employee for all work performed by the employee. However, not all time that an employee is at his or her workplace is compensable time, according to state and federal law. For example, the following activities are not compensable:
(1) Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform; and
(2) Activities which are preliminary or postliminary to the principal activity or activities, which occur either prior to the time or on any particular work day at which such employee commences, or subsequent to the time on any particular work day at which he or she ceases such principal activity or activities.
In Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court considered whether time expended by employees following the end of a work shift to go through a security checkpoint is compensable. In other words, the Supreme Court considered whether such security checks are activities that are preliminary or postliminary to the principal activity or activities of the job itself.
In this case, two employees of Integrity Staffing, a subcontractor for Amazon.com, alleged that they were entitled to wages for the time spent waiting to undergo security screenings following their work shifts. The screenings were intended to thwart employee theft of products. During the screening process, employees removed items such as wallets, keys and belts from their bodies and passed through metal detectors. Such screening time amounted to roughly 25 minutes each day. The employees argued that more scanners could have been installed to reduce the waiting time, and that because the screenings were conducted to prevent employee theft, the employees were entitled to wages for such screening time.
In a 9-0 decision, the Supreme Court held that the security screenings in this case were non-compensable. In making that determination, Justice Thomas wrote that such screenings were not the principal activity or activities that the employees were employed to perform. He reasoned that the employer did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipping to Amazon customers. The Court also concluded that the security screenings were not “integral and dispensable” to the employees’ duties as warehouse workers.
The opinion illustrates that it is erroneous to focus solely on whether the employer required a particular activity (like security screenings) to determine whether time at the workplace is compensable. Rather, the test for compensability is whether the activity is tied to the productive work that the employee is employed to perform.
In other cases, the consideration of such preliminary or postliminary activities have caused the Supreme Court to reach varying outcomes regarding compensability. For example, the Supreme Court has held that the time that battery plant employees spend showering and changing clothes is compensable because the chemicals in the plant are toxic to human beings, and the showering/changing is integrally related to that work. Similarly, the time that meat packer employees spend sharpening their knives (because dull knives would slow down production on the assembly line) was compensable time to the meat packer employees.
By contrast, the Supreme Court has held that the time that poultry plant employees spend waiting to don protective gear was not compensable because such donning was deemed to be not integrally related to the production on the assembly line.
Upshot: What guidance do these cases offer to employers who want to fairly compensate their employees, but on the other hand, do not want to pay for time that is not compensable? Consider whether the activity is integral and indispensable to the principal activities that an employee is employed to perform. That analysis itself is not necessarily clear cut. Consider reviewing your conclusions with professionals in the wage and hour field who are aware of relevant court decisions in this area, since the outcome tends to depend on specific facts and circumstances. The wrong decision by the employer regarding compensability could lead to lawsuits and back pay, penalties and attorney fees.
Many Wisconsinites are aware that Wisconsin Act 10 transformed union-management labor relations in the public sector when it became law in 2011. The enactment produced massive protests, political upheaval and numerous legal challenges.
Act 10 prohibits most public employees from collectively bargaining on issues other than base wages, prohibits municipal employers from deducting labor organization dues from paychecks of general employees, imposes annual recertification requirements, and prohibits fair share agreements.
The legal battle over Act 10 is over for now. The law has been upheld in its entirety by the Wisconsin Supreme Court in a 5-2 decision handed down on July 31, 2014.
The case was brought by Madison Teachers, Inc. and a union representing Milwaukee city employees. They argued that Act 10 violated state and federal constitutional rights to freedom of association and equal protection under the law. Writing for the majority of the Supreme Court, Justice Michael Gabelman stated, “Collective Bargaining remains a creation of legislative grace and not constitutional obligation.” Therefore, he continued, the legislature may change the nature of collective bargaining as it did in Act 10.
Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley wrote in dissent that the majority opinion diminished multiple constitutional rights. They would have held that Act 10 unconstitutionally infringes on the right of people to organize.
In his concurring opinion, Justice Patrick Crooks acknowledged that for many public workers, “Act 10 effectively ended meaningful union representation carried out through statutory collective bargaining.” He noted that the law reflects various policy determinations and that the judicial branch “must observe and recognize that the court system cannot substitute its judgment on questions of policy.” Those determinations, he wrote, are for the Wisconsin Legislature and Governor.