Last Friday, the National Labor Relations Board (“NLRB”) ruled that two employees of a sports bar and restaurant were unlawfully discharged for their participation in a Facebook discussion criticizing their employer. In the Facebook discussion that prompted the firings, a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer. The employee commented on the status, “I owe too. Such an asshole,” and was discharged. A second employee, who “liked” the former employee’s status, was discharged as well.
Section 7 of the National Labor Relations Act provides, in relevant part, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” At issue in this case was not whether the employees’ Facebook activity was “concerted” or whether the employees had a statutorily protected right to engage in a Facebook discussion about the employer’s tax-withholding practices. Rather, the case centered on whether, as a result of their actions on Facebook, the two employees adopted the allegedly defamatory and disparaging statements contained in the former employee’s Facebook status and therefore lost the protection of the Act.
Agreeing with the 2012 conclusion of an administrative law judge (“ALJ”), the NLRB found that the first employee’s comment on the former employee’s Facebook status “effectively endorsed” the former employee’s complaint about the supposed tax-calculation error. While the NLRB deviated from the ALJ in treating the second employee’s “like” as “expressing agreement” only with the original status’ complaint rather than the entire topic of discussion as it existed at that time and including additional commentary from other employees, the NLRB found that the two employees’ activities were not disloyal enough to lose the Act’s protection: “The comments at issue did not even mention the [employer’s] products or services, much less disparage them. 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.” The NLRB likewise determined that the comments were not defamatory, concluding there was no basis to find the statements maliciously untrue.
Finally, the NLRB reversed the ALJ’s dismissal of the employees’ allegation that their employer’s Internet/Blogging policy violated the Act, finding that employees reasonably would “construe the policy to prohibit the type of protected Facebook posts that led to the unlawful discharges.” As part of its policy, the employer enforced the following rule, maintained in the employee handbook: “[W]hen internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees . . . 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 NLRB concluded that the term “inappropriate” was “sufficiently imprecise” such that employees would reasonably understand it to encompass protected discussions. The NLRB further found that, having relied on this policy in discharging the employees, the employer “provided employees with an authoritative indication of the scope of its prohibition against inappropriate discussions and that they should construe its rule against inappropriate discussions to include such protected activity.”
The NLRB previously has handled other social-media cases, and in 2011 and 2012 the NLRB General Counsel released a series of reports detailing the results of investigations into dozens of these cases, both in response to employers’ requests for guidance and in order to ensure consistent enforcement. So far enforcement has reflected a mixed bag with fact-specific outcomes. Some policies and disciplinary actions have provided reasonable cause for the General Counsel to issue complaints against employers alleging unlawful conduct, and other investigations have found communications not to be protected under the Act. In the fall of 2012, the NLRB began to issue decisions in cases involving discipline for social-media behavior. Such decisions are significant because they establish precedent for novel questions, but the NLRB has not ruled on many social-media cases.