Legal Surprises When You "Like" a Facebook Posting

In a time when online presence defines many of our perceptions, we often think that online comments and postings about an employer would be a big no-no. Think again. A recent decision by the NLRB has given the green light to employees to express themselves freely, even if the employer may see those comments as defamatory.  Employers, beware.

In a recent decision by the National Relations Labor Board in Triple Play Sports Bar & Grille, 361 NLRB No. 31 (August 22, 2014) the NLRB upheld an earlier decision (NLRB 34-CA-01291, January 3, 2012) that the Triple Play Sports Bar & Grille had unlawfully discharged two employees for making disloyal and defamatory posts about their employer in their participation in a Facebook discussion.  In this case, several employees discovered that due to mistakes in their employer’s calculations of their withholding taxes, they would have to pay more taxes and took to their Facebook accounts with their complaints. The recently departed employee posted:

"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!!!!"

In response to this complaint, other employees replied in kind, liked the post and customers of Triple Play commented. The Bar &Grille caught whiff of the thread and terminated two employees for their actions.

Long story made short: the NLRB ruled that the activities of these employees constituted NLR Act, Section 7, protected “concerted activities” for the purpose of employees’ mutual aid and protection and  their right to act together to improve terms and conditions of employment. The ruling found that their discussion related to known tax liabilities in their workplace and issues to be raised in the next staff meeting (ergo, protected and concerted) and that no intended malice or false statements were made by them regarding the products and services of their employer and directed to the public.  This latter was a major contention by the Bar & Grille, which had an Internet/Blogging employment policy prohibiting engaging in “inappropriate discussions about the company, management and/or co-workers.”  This policy was also ruled unlawful in that its employees could perceive these “discussions” to include protected activities in violation of  NLR Act, Section 8 (a)(1), which protects employees’ rights in NLR Act, Section 7, despite the policy’s  “savings” clause, “In the event state or federal law precludes this policy, then it is of no force or effect.”

Lesson to all employers:  Know that certain social media activities are protected by the National Labor Relations Act, particularly when two or more employees act together to improve terms and conditions of employment.  Learn the distinction between employee protected and unprotected social media activities, both in and out of the workplace.  Review your employee policies to ensure compliance with the latest NLRB decisions.