Numerous actions by the NLRB’s General Counsel and administrative law judges (highlighted in prior posts on this blog) have caused great concern for labor professionals grappling with the inappropriate comments of employees posted on social media. While these actions have made it difficult enough to determine whether employees’ online comments sufficiently cross the line to take lawful disciplinary action, the NLRB now adds to the confusion, finding employees who simply click “Like” in response to a Facebook post may be engaging in protected, concerted activity.
On August 22, 2014, the three member NLRB panel issued a unanimous decision in Triple Play Sports Bar and Grille, 361 N.L.R.B. No. 31, finding an employer unlawfully discharged two employees for their participation in a Facebook discussion involving claims that the bar made withholding mistakes which caused the employees to owe additional state income taxes. The conversation started when a former employee posted a “status update” complaining that she owed money because the bar did not do her tax paperwork correctly. The former employee stated: “Maybe someone should do the owners of Triple Play a favor and buy it from them.” Other employees commented on the former employee’s status, echoing their dissatisfaction in various profanity-laced statements. The former employee who posted the initial status later added a comment accusing the owner of pocketing money from their paychecks.
Sanzone and Spinella, the two employees who were discharged, played a lesser role in the Facebook conversation. Sanzone added one comment stating “I owe too. Such an asshole.” Spinella simply selected the “Like” option under the initial status update. When the owner learned of the Facebook conversation, he discharged both Sanzone and Spinella for their part in the conversation. The owner told Sanzone she was disloyal for making the Facebook comment, and told Spinella it was apparent he wanted to work elsewhere since he “liked” the disparaging and defamatory comments made by other commenters. While several other employees also participated in the Facebook discussion, it is unclear from the NLRB’s opinion what, if any, disciplinary action was taken against those individuals.
The NLRB held both discharges at issue were unlawful because the employees were acting as part of an ongoing sequence of discussions regarding a workplace concern. The NLRB found that Sanzone’s single expletive describing her boss as an “asshole,” in the course of an otherwise protected discussion, did not give the employer sufficient cause to terminate her employment. Further, Spinella’s “like” of the initial status update was protected activity and did not extend to other commenters’ posts, some of which may have lost their protection under the NLRA because they made maliciously false accusations about the employer pocketing the employees’ money. Neither Sanzone nor Spinella lost their protection merely by participating in a protected discussion in which other individuals made unprotected statements. Ultimately, the NLRB concluded that neither employee’s online activities were so disloyal as to lose protection under the NLRA.
Finally, the NLRB (with one dissent by Member Miscimarra) held that the employer’s Internet/Blogging policy, which prohibited employees from “engaging in inappropriate discussions about the company, management, and/or coworkers,” was unlawfully overbroad because employees could reasonably interpret the rule as prohibiting any discussions about their terms and conditions of employment. Therefore, the term “inappropriate” was deemed “sufficiently imprecise” and in violation of Section 8(a)(1) of the NLRA. Although a divided decision, the majority’s opinion seems in line with numerous other recent NLRB decisions on employer social media policies.
In light of the NLRB’s recent expansion, labor professionals are well-advised to continually review and update their social media policies and consult with qualified labor counsel when confronted with questions of protected, concerted conduct. Labor professionals who do not may not “like” the result.