Quirky Question #269: Like it or Not – Facebook Post Protected Under the NLRA

Question: I own a small manufacturing company that employs 25-35 employees, depending on our workload.  Over the years, a number of my customers and my employees have “friended” me on Facebook.  Last week, I saw that one of our employees had posted a comment that I don’t pay enough overtime and that I’m, “f—ing cheap,” because I don’t give enough paid vacation.  Almost worse, I saw that three other employees “liked” the post.  I work hard to treat my employees fairly, and to ensure that I staff adequately so that employees do not need to work overtime.  I’m afraid this post is going to hurt employee morale, and I’d like to fire the employee who posted and the ones who liked the post.  Is there anything I should consider?

Answer: By Rebecca Bernhard and Jillian Kornblatt

Rebecca Bernhard

Jillian Kornblatt

Employers may not like it, but the National Labor Relations Board (“NLRB”) and, very recently, the U.S. Court of Appeal for the Second Circuit have held that an employee’s Facebook post related to wages or working conditions, when combined with other employees’ Facebook comments or “likes” of that post, can constitute protected concerted activity under the National Labor Relations Act (“NLRA” or the “Act”).  See Three D, LLC v. NLRB, 2015 U.S. App. LEXIS 18493, (2d Cir. Oct. 21, 2015).  The NLRA prohibits all employers – whether unionized or not – from terminating employees for exercising their NLRA rights.

In Three D, one of the Triple Play Sports Bar’s employee’s posted on Facebook, “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!!!!”  Another employee like the post, commenting, “I owe too. Such an asshole.”  Triple Play’s owners saw the Facebook posts and fired the employees for making them.  The Second Circuit upheld the NLRB’s ruling that Triple Play’s discharge of the employees based on their Facebook posts violated Section 8(a)(1) of the NLRA.

Section 7 of the Act guarantees employees the right to “self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection. . . .” 29 U.S.C. § 157.   Section 8(a)(1) of the Act protects employees’ Section 7 rights by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of the Section 7 rights.  29 U.S.C. § 158(a)(1).

The Court held that the employees’ posts constituted “concerted activity” under Section 7, because they were “part of an ongoing sequence of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding.”  The Facebook post and the co-worker’s “like” and comment, the Court reasoned, were workplace complaints, regardless of the forum in which they were made.

The Court explained that even if the commenting employee’s withholdings had not been incorrectly calculated (Triple Play’s contention), her statements were not sufficiently disloyal or defamatory to lose protection under the Act. The Court upheld the NLRB’s long-held position that even when an employee’s statements are “false, misleading, or inaccurate,” they will not lose protection under the Act unless they are shown by the employer to be “maliciously untrue.”  The Court also held that the employees’ posts were not “disloyal” to an extent that would cause the posts to lose protection under the Act because the posts did not address Triple Play’s products or services.

Lastly, the Court forcefully rejected Triple Play’s argument that because the obscenity-containing posts had been viewed by its customers, under the Court’s precedent in Starbucks, the posts were not protected under the Act.  NLRB v. Starbucks Corp., 679 F. 3d 70 (2d Cir. 2012).  The Court explained that while employers do have legitimate interests in preventing employees from disparaging their products or services and in preventing employee outbursts of profanities in front of customers – neither of those concerns had happened through the posts at issue.

While some customers had viewed the posts, the posts were not directed at Triple Customers.  The Court emphatically argued for the importance of that distinction, explaining that because of the public nature of Facebook – holding all employee Facebook posts to a standard meant for contemporaneous employee statements in front of or directed to customers would have a “chilling” effect on protected employee discussions.

Almost all Facebook posts by employees have at least some potential to be viewed by customers. Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand.  The Board’s decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities that were viewed by customers accords with the reality of modern-day social media use.

This decision and other recent NLRB guidance show an increased focus on protecting employees’ Section 7 rights in a variety of contexts ranging from social media posts, employee attire, employer confidentiality policies, and policies purporting to limit employees’ ability to speak “disrespectfully” in voicing concerns about wages and working conditions.  Employee activity that could be construed as an exercise of Section 7 rights should not be the basis for discharge or other adverse employment action.  If an employer is considering an adverse employment action for another reason, the employer should ensure that its true reasons are clearly articulated and documented, in order to limit potential arguments that the adverse action was instead retaliation for the employee’s exercising of protected rights under the Act.  Offering employees alternative, private channels to voice their workplace complaints to management may be a way to reduce employees’ inclination to vent their frustrations in more public forums, such as Facebook and similar social media sites.

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