Law and Technology

National Labor Relations Board decision targets Facebook ‘likes’

What it boils down to is whether social media conversations are protected activities.

September 12, 2014
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The National Labor Relations Board recently upheld its view of social media conversations, including clicking the “like” button, as the equivalent of water cooler talk.

The NLRB decided in favor of two former Triple Play Sports Bar & Grill employees who argued their participation in a Facebook exchange was protected concerted activity.

The bar, which is located in Connecticut, had dismissed both employees after it found one of them had liked another employee’s Facebook post complaining about a tax deduction mistake and the other had commented in agreement with the post, saying the same thing had happened to him.

“One of the employees posted on her site that Triple Play had screwed up her withholding taxes,” Mark Smith, attorney at Rhoades McKee said. “Then a Facebook conversation ensued amongst all of them relating to the post.”

Smith explained the decision was in line with previous NLRB decisions regarding social media use by employees, but he said what was unique was the framework the agency used to make its determination.

“The board has said for some period of time these social media exchanges of viewpoints for mutual aid or protection are protected,” Smith said. “They are just the equivalent of the old water cooler talk. But the courts have struggled with ‘how do we determine how far an employee can go before they cross the line and it’s not protected activity?’”

Smith said in the past the NLRB used a case from the 1970s as its framework for drawing the line on social media posts and exchanges.

“Basically, the old framework was based on what kind of confrontation can an employee get into with management and still be protected, and when do they go over the line,” Smith said.

“An employer has the right to maintain order and stability in the workplace, and you can’t have an employee shouting in your face and then hiding behind ‘engaging in concerted activity.’”

Smith said that line of thought doesn’t really fit the social media scenario, however.

“These are off-site, non-work communications, so why should we view it through the framework of what can an employer do onsite to maintain order?” he asked.

The NLRB has come to this same conclusion, and in the Triple Play Sports case the agency instituted a new framework in considering if the dismissal of the bar’s employees was unlawful.

The two cases making up the new framework have to do with whether the comments are related to terms and conditions of employment, or if they are defamatory and malicious and without any relationship to the terms and conditions of employment.

“They are really imposing a civil liability standard,” Smith said. “You can’t defame your employer and then hide behind this as just concerted activity for mutual aid and protection.”

For instance, an employee who posts a comment on Facebook stating, “I’m embarrassed to work here; our products are crap,” would likely not be considered protected by the NLRB.

However, Smith said an employee who posted, “I was forced to work overtime again without being paid for it. My company stinks,” would be protected.

In the instance of Triple Play Sports, the NLRB did find the employees were protected by the National Labor Relations Act and had been unlawfully discharged by their employer.

Smith said the decision impacts a couple of things for employers.

The first is that the NLRB has reaffirmed social media conversations are protected activity under the National Labor Relations Act, including clicking the “like” button, if they pertain to terms and conditions of employment.

The second involves an employer’s social media policy.

“In this case, the NLRB held the Internet blogging policy of the company could not be sustained in the face of the NLRA because it prohibited inappropriate discussions about the company, (asking), ‘What does inappropriate discussion about the company mean?’” Smith said.

According to the NLRB, an overly broad policy could lead an employee to believe he or she cannot discuss things such as wages or other terms and conditions of employment.

Smith said companies don’t have to do away with their policy, but they do need to be clear about what it entails.

“If you have such a policy, what you need to do is remove some of the general words, like ‘inappropriate discussions,’ and make clear what it is you are talking about so you aren’t discouraging employees from engaging in lawful concerted activity,” he said.

He said making sure the policy is specific about what types of exchanges are protected and what types would not be protected is important if the policy is going to hold up to legal challenges.

“The NLRB errs on the side of finding protected activity,” he said.

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