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  September 26, 2014

silly face.jpgSeveral employees joined each other in a Facebook exchange in commenting about their boss messing up the withholding on their paychecks. One employee went so far as to say, “What an asshole!”, referring to her boss. Another employee “liked” her remark but said nothing more. The boss didn’t take kindly to either activity and fired them both.


Employees Go to the NLRB

The employees filed an unfair labor practice claim with the National Labor Relations Board (“NLRB”) over their terminations. In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), the NLRB found that the employer violated the National Labor Relations Act (“NLRA”) by firing the employees for their Facebook activity. The NLRB said the employees’ discussion was protected “concerted activity” aimed at improving employment conditions. Under the NLRA, the employer could not fire them for engaging in protected activity.

So What Does An Employer Have to Put Up With on Social Media?

The standard for what is acceptable “concerted activity” and what crosses the line into defamation and crude disparagement that won’t be protected is a moving target. Prior NLRB cases have recognized that in some cases the employee’s conduct loses the NLRB’s protection. It is not protected activity if an employee falsely and maliciously disparages an employer’s products or services or defames an employer, and it causes damage.

In this case, the NLRB did not agree with the employer’s argument that the “what an asshole” comment wasn’t protected since it was defamatory. Even though the NLRB agreed the comment was crude, it was still protected as dealing with a working condition — proper withholding from paychecks.Also, the comment was not considered factual enough to constitute defamation. Finally, the NLRB said since neither employee defamed or disparaged their employer’s sports bar services, the Facebook activity was protected.

Employer’s Social Media Policy Found Unlawful Too

As a double whammy, the Board also struck down the employer’s Internet use policy, saying it encroached on employees’ protected rights under the NLRA. The NLRB has said that a social media policy will be found to violate the NLRA if “it chills an employee’s exercise of his concerted activity rights.” This employer’s Internet use policy outlawed “inappropriate” Internet use. The NLRB said this “inappropriate” standard was too vague and overbroad and could reasonably be viewed as punishing protected activity.

The Bottom Line

The employees got their jobs back, received back pay, and the employer had to rewrite its social media policy. Not a good day for this employer.

Word to the Wise: As an employer, don’t terminate an employee in a knee-jerk reaction to an employee blatantly insulting her boss or the employer in general in a social media forum. You have to analyze the context in which the remark was made, and, if even highly inflammatory or offensive language deals with “legitimate workplace concerns,” the employee’s comments are protected and cannot be the basis for termination or retaliation.

Also, have your social media policy reviewed by competent employment law counsel to be sure it doesn’t “chill” the concerted protected activities of employees, or the policy itself could form the basis for an NLRB charge.

Before firing an employee, consider seeking legal advice from an experienced employment law attorney, such as Adair M. Buckner in Amarillo, Texas. Contact Adair M. Buckner today to schedule a consultation* at (806)220-0150.

*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)

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Article Topics:
Labor & Employment Law