Employee Social Media Comments Protected by Federal Labor Law

Important — and good - news about workers and social media. From Newspaper Guild attorney Barbara Camens:

The NLRB has affirmed its commitment to broadly protect employees who use social media to discuss workplace concerns.

In Triple Play Sports Bar, 361 NLRB No. 31 (August 22, 2014), the Board found unlawful the discharge of two employees for a Facebook discussion of their employer’s mistakes in income tax with holding. The first employee had simply “liked” a comment posted by a former employee:

“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!!”

The second had posted the following comment: “I owe too. Such an asshole.” The employer fired both for disloyalty, defamation, disparagement and undermining the company’s public image.

The Board found the Facebook communications “concerted” for purposes of National Labor Relations Act protection as the communications addressed a mutually held workplace concern regarding employee tax liabilities. The Board then discussed whether the social media posts were rendered unprotected on grounds of disloyalty. Because the comments were made off-duty and off-site, the Board found inapplicable its Atlantic Steel test, which analyzes whether face-to -face communications at the workplace between an employee and a supervisor are “so opprobrious” as to lose protection of the Act.

The Board instead followed the Supreme Court’s test in Jefferson Standard and Linn and found the employee comments to be neither disloyal nor defamatory:

Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

Because the Facebook comments were fully protected by the Act, the Board ordered reinstatement and back pay for both discharged employees.

Finally, the Board struck down as overly broad the employer’s “Internet/Blogging” policy contained in its employee handbook. The policy provided:

…when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment…

The Board found the ban on “inappropriate” internet discussions to be so vague as to unlawfully chill the exercise of protected communication rights.

The Triple Play decision is most welcome, as several social media decisions – including Hispanics United of Buffalo – have been set aside by Noel Canning, the Supreme Court ruling that rescinded the recess appointments of certain Board members. Stay tuned as the Board continues to respond to the impact of Noel Canning.