As we have discussed in several previous alerts, the National Labor Relations Board continues to pursue complaints against employers related to an expanding realm of policies and social media activity. In another recent Facebook-related ruling, the Board affirmed the decision by an Administrative Law Judge (ALJ) in Design Technology Group LLC dba Bettie Page Clothing, a case with some amusing facts involving a retail store that discharged three employees who had complained about their manager in a series of posts on Facebook. The ALJ ruled that firing the employees shortly after they had made the posts constituted an unfair labor practice. The Board affirmed the ALJ’s recommendation to order the Company to reinstate the employees with back wages, and required the Company to post a nationwide notice because of an unlawful policy in its handbook.
In July 2011, the Company opened a store location in the Haight Ashbury district of San Francisco. Several employees had complained to various Company officials that the store manager did not manage the store effectively, particularly because the store closed later than other stores in the area and employees who closed the store were harassed by street people. One evening in November 2011, with the store manager out of town, Employee #1 and Employee #2 closed the store an hour early with the store owner’s approval. That evening, the store manager called Employee #1 and angrily confronted her about why she was not answering the store telephone, and accused her of lying about having permission to close the store early.
Later that evening, Employee #1 posted a Facebook status, and engaged in a conversation in the comments complaining about the store manager with Employee #2 and another coworker. The conversation ended with Employee #1 writing: “hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!”
The store manager learned about the Facebook posts from another coworker, and, just six days later, fired Employee #1 and #2 because things “weren’t working out.” The two employees later posted on Facebook that the firing was “amazing” and “the best thing.” Employee #3 added a comment that the Company had “fallen into my crutches,” quoting dialogue from the 1960s TV show “The Monkees.” The Company fired Employee #3 about a month later, allegedly for other misconduct. However, when it later appealed Employee #3’s unemployment claim, the Company attached copies of her Facebook posts as evidence and testified that this supposed “defamation on public media” was one of the Company’s reasons for firing her.
The Board held that the Facebook comments by all three employees constituted protected concerted activity because the posts were “in and of themselves” protected concerted activity. This finding went further than the ALJ, who had found the comments were protected as a continuation of the employees’ efforts to raise concerns about working late in an unsafe neighborhood. The Company, failing to recognize the reference to “The Monkees” episode, asserted an entrapment defense, arguing that Employee #3’s comment showed that it was “set up by the employees.” The ALJ agreed with the General Counsel that the Company’s conspiracy theory was “nonsensical” and also rejected the Company’s argument that it had terminated the employees for unrelated insubordination and attendance issues. The ALJ held that the Company failed to prove it would have fired the three employees if they had not engaged in protected concerted activity. As a remedy, the ALJ ordered the Company to offer the discharged employees back pay and full reinstatement to their former jobs (or, if those jobs no longer existed, to substantially equivalent positions).
The Board also found that the Company’s “Wage and Salary Disclosure” rule in its handbook, which prohibited the disclosure of wage or compensation to any third party, was unlawful. The Board ordered the Company to republish its handbook without the unlawful policy and to make a nationwide notice posting in all of its stores.
This decision reinforces that employee complaints and comments in social media can easily be considered protected concerted activity, leaving employers open to unfair labor practice charges and retaliation claims. The decision also serves as a reminder that the Board will closely review employer handbooks and policies when investigating these charges. The facts of this case again illustrate that all employers—unionized and nonunionized—should carefully consider the implications of the National Labor Relations Act before disciplining or discharging employees for comments made in social media. The case also should disabuse employers of the notion that employees are not increasingly aware of their rights under the Act.