The National Labor Relations Board continues its line of decisions declaring employee social media use as protected concerted activity under Section 7 of the NLRA. Last month in Triple Play Sports Bar & Grille, the Board extended these protections to an employee who hit the “like” button in response to another employee’s complaint on Facebook about the employer’s payroll practices.
The employer underestimated state tax withholdings, resulting in a number of employees owing additional taxes. One upset employee posted a Facebook status update complaining about the error, and calling the owner of the business an “asshole.” Several other employees echoed these comments, and one simply “liked” the original posting. The employer learned of the discussion from a friend of the posting employee, and terminated the employees for disloyalty.
The NLRB affirmed a decision finding the employer in violation of Section 7. The discussions were clearly work-related, and the Board noted prior decisions finding Facebook comments protected concerted activity even if they involve or can be viewed by persons outside of the company.
On appeal, the employer contended that the discussion lost its protected status due to the defamatory and disparaging nature of the comments. It claimed that by liking the comment, the discharged employee was stating her approval of the nature of these comments. The Board, disagreed, affirming the earlier decision. In its opinion, the NLRB made no distinction between an employee who directly complains about working conditions, and one who merely likes, or echoes those earlier opinions. The Board concluded that the original comments were not defamatory, and therefore, the entire discussion constituted protected concerted activity.
Employers should not take disciplinary action against employee for misuse of social media before careful consideration and consultation with legal counsel. The NLRB is granting employees considerable leeway with regard to the tone and content of work-related complaints, and the employer’s taking offense at such comments in most cases will not create a viable legal defense.
