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.