Downright Unfriendly – Employees Can Post $#@%! About Your Organization

In an era when venting on social media reigns supreme, the actions an employer can take against employees who choose to air their grievances on social media platforms is quite dicey. According to the courts, some comments are protected, no matter what they say in the form of an opinion.

The United States Court of Appeals for the Second Circuit this past October af­firmed the National Labor Relations Board’s (NLRB) decision in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB (Triple Play), which held that Facebook “likes” and comments constitute protected activity under Section 7 of the National Labor Relations Act (NLRA). The Triple Play case is yet another example of the current NLRB’s aggressive expansion into the nontraditional labor world, including nonprofit employers.

The NLRA is not just about unions anymore.

Under Section 7 of the NLRA, employees have 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.” Employers, including nonprofit employers, are prohibited from interfering with, restraining, or coercing employees who are exercising these rights in accordance with Section 8(a)(1) of the NLRA.

In the originating case, one employee posted a comment on Facebook complaining about a payroll withholding mistake: “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!!!!” A second employee liked this comment using Facebook’s “like” feature. The employer terminated both employees.

The NLRB determined that the employees’ “like” and comment on Facebook were both protected, concerted activity, as they were in the context of a discussion among co-employees about the employer’s improper tax withholding.

The Second Circuit also upheld the NLRB’s ruling that the employer’s Internet and Blogging Policy (the Policy), which prohibits employees from engaging in “inappropriate” discussions about the company, violated the employees’ rights under the NLRA. Such a policy could be reasonably construed to prohibit Section 7 activity.

Absent an explicit restriction on activities protected by Section 7, generally a policy may violate the employees’ Section 7 rights if it can be shown that: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” (NLRB v. Martin Luther Mem’l Home, Inc. d/b/a Lutheran Heritage Village—Livonia, 343 NLRB 646, 647 (2004).) Here, the policy indirectly proscribed, and employees could reasonably interpret it as prohibiting, any discussion between employees about the terms and conditions of their employment.

However, the NLRB and the Second Circuit warned that not all social media commentary is protected. The Second Circuit noted that an employee’s behavior or communications may not be protected if they are “sufficiently disloyal or defamatory.” (MasTec Advanced Techs., 357 NLRB No. 17, slip op. at *6 (2011).) In other words, an employee’s statements may not rise to a level of criticism that goes beyond any current labor dispute. In this case, however, the comments made on Facebook regarding the employer’s tax-withholding practices did not specifically disparage the employer’s products or services, and were not “maliciously untrue.”

Additionally, the fact that obscenities were used in the Facebook discussion, which could be seen by Triple Play customers, did not elevate the behavior to unprotected activity. The court noted that while customers did view or may have viewed the statements posted by the employees, the discussion between the employees on Facebook was not directed to the customers and “did not reflect the employer’s brand.”

The NLRB commented that most social media posts are at risk of being viewed by at least some of the employer’s customers. Ap­plying an over-encompassing ban on employee speech on social media would have a chilling effect on employee speech generally. There­fore, Triple Play’s termination of the two employees violated Section 8(a)(1).

The decision in Triple Play expands the protected rights of employees of for-profit or nonprofit employers who use social media as a means of expressing opinions and facts about their employers. All nonprofit employers, both union and non-union, should be aware that any restrictions on employee discussions, communications, or activities may lead to unfair labor practice charges.

To avoid any violations, nonprofit employers should consult with counsel before limiting these activities or taking any employment action against an employee who participates in such discussions or communications. Nonprofit employers must be aware of the baseline standard by which these comments are evaluated, and remember that the mere use of obscenities by an employee on a social media website that may be viewed by the employer’s members, donors, constituency, or the like is not sufficient reason to discipline that employee. Furthermore, nonprofit employers must be conscientious about the wording in any of their Internet, blogging, social media, or other handbook policies, so that they neither explicitly nor implicitly restrict employees’ rights under Section 7 of the NLRA.    E

Brian Clark is a partner in Venable LLP’s Labor and Employment Group and has more than 25 years of experience. His email is [email protected] Allison B. Gotfried is an associate in Venable’s Labor and Employment practice group. She has been involved in representing clients in the healthcare, nonprofit, education, construction, transportation and building services industries. Her email is [email protected]