Employers should be concerned by the National Labor Relations Board’s latest decision pertaining to social media and work. If not concerned, then taking very special note of, at the very least.
This ruling, as detailed thoroughly in this posting from Littler Publications, centers around employees’ off-duty social-media posts about work, and what employers can and can’t mandate about that.
In the ruling, as the posting puts it, the board came down hard on the employer — Triple Play (a.k.a., Triple D) Sports Bar and Grille in Watertown, Conn. — in that it “set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7 [of the National Labor Relations Act], determined that [a Facebook] ‘Like’ in that case was protected, reversed the employee’s firing and found a key provision in the employer’s social-media policy to be unlawfully overbroad.” I’d say that’s coming down hard.
The case has to do with several employees who were complaining in a Facebook discussion about a mistake they suspected the bar’s owners of making when calculating their state tax withholding. Some in the discussion were simply following the lines of the conversation. Here is Littler’s rendition of what transpired:
The owners organized a staff meeting with the payroll provider to discuss the issue. Before this meeting, Jamie LaFrance, a former employee who had recently left [her job] started a Facebook conversation by posting the following status update:
“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!!!!”
Several comments followed in which a customer and a current employee sympathized.
LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state’s “labor board.” At that point, a current employee, Vincent Spinella, selected the “Like” option under LaFrance’s initial status update.
As the Facebook exchange continued, LaFrance verbally attacked one of the owners:
“Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.”
Another current employee, Jillian Sanzone, followed this statement by posting: “I owe too. Such an asshole.” More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.
After learning about the Facebook exchange from one of LaFrance’s Facebook friends, a current employee who happened to be the sister of one of the owners, the owners questioned Spinella about his “Like.” They told Spinella that it was “apparent” he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment.
Spinella accused Triple D of illegal actions under the NLRA and the case came before the NLRB. Triple D argued that the disparaging comments and Spinella’s “Like” took the case outside the realm of the NLRA’s Section 7 protection as a concerted activity. The board, however, ruled otherwise because: Spinella did not specifically “like” any of LaFrance’s allegedly defamatory comments in and of themselves, the comments weren’t intended for public consumption on a private Facebook page and no one mentioned anything disparaging about the employer, per se, but related everything to an ongoing labor — i.e., tax withholding — dispute.
The NLRB also ruled this portion of Triple D’s social-media policy was too broad:
“[W]hen Internet blogging, chat room discussions … 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. … In the event state or federal law precludes this policy, then it is of no force or effect.”
So what should you be concerned about exactly? Littler attorneys Philip Gordon and Zoe Argento offer these six takeaways in their post:
- Because a “Like” standing alone can be protected, employers should consider consulting with counsel before disciplining employees based on their selection of the “Like” button.
- When analyzing whether a “Like” is protected speech, employers should refer to the specific post or comment to which the “Like” relates.
- When analyzing whether otherwise protected social-media posts have crossed the line and lost their protection, the NLRB will apply different standards to disparagement of the employer’s products and services and defamation of the employer or members of its workforce.
- The actual malice standard applicable to defamatory statements imposes a heavy burden on the employer to prove that the employee posted content knowing it was false or it was made with reckless disregard for the truth.
- Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media.
- The NLRB continues to closely scrutinize social-media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech. Relatedly, employers should expect the board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation. Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.
For your additional reading pleasure, and pointers, here are numerous blog posts we’ve written about social media in the workplace and social-media policies employers are drafting, should be drafting and shouldn’t be drafting in their attempts to control its impact.
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