Board Continues Aggressive Policing of Employee Social Media Use

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Stop me if you heard this one: the National Labor Relations Board recently reinstated employees who were discharged for comments made on their Facebook pages and found that the employer's social media policy was unlawful.

We have covered this topic in detail before (herehere and here for example), and you can check out these posts and others in our Archive for some background information on the Board's aggressive approach to social media issues. In Triple Play Sports Bar and Grille, the Board made clear its position that under the National Labor Relations Act, employees have the right to act together to improve the terms and conditions of their employment and to "improve their lot." The Board went on to state that this includes the right to use social media to communicate with each other and with the public for this purpose.

On the other hand, the Board also noted that online communications can implicate legitimate employer interests, including the right to maintain employee discipline. The Board noted that the competing interests of the employees and the employer must be weighed carefully (yes, you know where this is headed). In this case, not surprisingly, the Board found that the employees' interests outweighed the employer's interests and that the employees' conduct did not lose the protections of the Act despite the use of some pretty offensive language.

Let's take a look at the facts.

Triple Play is a non-union establishment. At some point, the employees learned that they owed state income taxes because their paycheck withholdings were incorrect due to an apparent accounting error. As employees tend to do when they are upset, these employees took to Facebook to vent their frustration. A discussion ensued among employees and customers on Facebook, and the owner of Triple Play was referred to using some pretty colorful and insulting names. In addition, the group used insulting language to refer to Triple Play. There was some dispute regarding who had access to the posts--the entire world or only Facebook friends--but the discussion came to the attention of the owners of Triple Play the day after it was posted.

When the employees returned to work, one was immediately fired. Another was questioned about the posts, and admitted that when he "Liked" the posts made by other employees, he was expressing his support for the content of the posts. This employee was promptly fired as well.

The Board found that the employees' discussion of the calculation of tax withholdings, the complaints they intended to raise at an upcoming meeting about the issue, and possible complaints to the Department of Labor, constituted concerted protected activity under the Act. The employer argued that the employees' comments lost the protection of the Act because the comments were defamatory and disparaging and because they were made in a public forum. I really like that last argument. To me, the world wide audience on the web really changes the dynamics of these situations and it cannot seriously be argued that such discussions are analogous to discussions around a water cooler.

The Board did say that given the public nature of the posts, which were made offsite and outside of working hours, the standard Atlantic Steel test used to determine whether comments were so outrageous as to lose protection of the Act, was not appropriate. Instead, the Board found that the Wright Line test was the appropriate test. The Wright Line test examines whether comments made by employees are so disloyal or defamatory as to lose the protection of the Act. This test balances the employees' rights under the Act against the employer's interests in preventing the disparagement of its products and services and its interest in protecting its reputation.

In its evaluation of the Wright Line test, the Board found that the comments related to an ongoing "labor dispute" and were not directed toward the general public, because the comments were posted on a personal Facebook page. A personal page, it should be noted, that could have a worldwide audience, a fact apparently lost on the Board. The Board likened the conversation to one that could be overheard at the bar or in a workplace. This is an analogy that I wholeheartedly disagree with; see my comments above.

The Board ultimately concluded that under the Wright Line test, the employees' comments were not so defamatory or so disloyal as to lose the protection of the Act. The Board, therefore, ordered that the employees be reinstated. The Board also held that the employer's Internet/Blogging policy violated the Act. The Board concluded that a reasonable employee could construe the policy's prohibition on "inappropriate discussions about the company, management and/or coworkers" as a restriction on their rights under the Act. The Board found this rule was overly broad and could chill the exercise of employee rights under the Act.

For those of you following the Board and/or our Blog, the result here does not surprise you. The employer lost on all fronts. It is interesting that the Board spent some time talking about the public nature of the Facebook posts though. Given that the Board found that the employee comments were not so disloyal or defamatory as to lose the protections of the Act, this discussion by the Board was essentially irrelevant. However, it leads us to believe that the Board may have been outlining a new framework for addressing how it will be evaluating social media activity; and specifically, how the Board may distinguish between private, semi-private, and public posts when considering these issues in the future. Hopefully, employers who find themselves before the Board in the future will make a detailed record outlining the extremely public nature of everything posted to the internet.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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