Where’s the “Dislike” Button? 2nd Circuit Affirms Employee-Friendly Social Media Ruling

by Obermayer Rebmann Maxwell & Hippel LLP
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In my last post on HR legalist, I outlined the current state of the law regarding employee social media use.  One trend I have been following is the National Labor Relations Board’s expansion of protections for employees who criticize their employers on social media.  For the most part, the NLRB’s rulings in this area have gone unchallenged in the federal courts, meaning that employers who discipline or terminate employees for critical posts could find themselves in hot water before one of the Board’s Administrative Law Judges.  This is significant because the NLRB has the power to award back pay, strike down employer policies, and even reinstate terminated employees.

Last August, a Connecticut sports bar, Triple Play Sports Bar, found itself on the losing end of one of the NLRB’s social media decisions.  The bar had terminated two employees for their activities on Facebook.  The first employee “liked” a post made by a former employee stating that Triple Play’s owners didn’t know how to properly handle payroll tax issues (the original post concluded: “Now I OWE money… Wtf!!!!”)  The second employee commented that she also owed money, and referred to one of the owners as an “asshole.”  The NLRB concluded that both the “like” and the comment were both protected under federal labor law because they were part of an ongoing discussion between four employees about the tax issue.

After the NLRB issued its ruling in favor of the employees, Triple Play appealed to the Second Circuit Court of Appeals. Unfortunately for the bar, the Second Circuit recently issued a summary order affirming the NLRB’s ruling, and agreeing with the NLRB on the three main legal issues on appeal.  First, the court rejected Triple Play’s argument that the comments lost protection because they contained obscenities that were seen by customers, reasoning that this argument would restrict “virtually all employee speech online.”  Second, the court agreed with the NLRB that the “like” and the comment were made to provide mutual support of other employees in an ongoing labor dispute, not to disparage Triple Play.  Finally, the court affirmed the NLRB’s ruling that employees could reasonably interpret the bar’s internet/blogging policy (which prohibited employees from “engaging in inappropriate discussions about the company”) to prevent them from discussing the terms and conditions of their employment.

This is not to say that employers are powerless to respond to inappropriate social media postings. First of all, the Second Circuit’s recent order is non-precedential, and the court denied the NLRB’s motion to publish the order.  Secondly, there are many other factors that come into play in determining whether employee postings are protected – such as whether multiple employees are involved, the topics being discussed, and whether any of the comments are defamatory, threatening, or discriminatory.  For now, however, the NLRB will likely continue scrutinizing employers who discipline employees for discussing workplace issues online.  Employers should make sure their social media policies comply with the law, and use caution when disciplining employees for posts that could be legally protected.

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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