Social Media. Just a few years ago this term didn’t even exist, but in the last ten years Facebook, Twitter, LinkedIn, Reddit, Tumblr, etc., have exploded in popularity. People are talking about and photographing what they’re doing, what they’re eating, what they’re kids are doing, what they’re cats are doing.
But what happens when people start talking about their jobs or their employers on social media? No one wants to be embarrassed in front of others, and this is especially the case when an employee discusses your business’ ‘dirty laundry’ online. Such public conversations can lead to lost customers and lost income.
It is one thing to fire an employee for bragging online about falsely taking sick days, or about hating the product or calling the boss an idiot, but what can an employer do when an employee writes on social media about his or her experience at work? The answer, of course, is that it depends…
Section 7 of the National Labor Relations Act (NLRA) guarantees that “employees shall have the right to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of … mutual aid or protection….” Section 8 of the NLRA prohibiting an employer from “interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7.”
So when two employees of a sports bar were fired after they discussed the employer’s perceived failings with regard to tax withholdings that left the employees liable for more state income tax then they thought they should have to pay, the National Labor Relations Board (NLRB) became involved.
One employee wrote on his Facebook page:
“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!!!!”
The other employee “liked” the status update and responded by commenting:
“I owe too. Such an asshole.”
The NLRB held an administrative hearing that found that the employer sports bar violated the NLRA when it wrongfully fired the two employees. The restaurant appealed the case to the United States Court of Appeals for the 2nd Circuit.
The case of Triple Play Sports Bar and Grille v. National Labor Relations Board was decided just last month, on October 21, 2015, and the Court of Appeals upheld the NLRB’s decision.
The Court ruled that an employee’s rights under Sections 7 and 8 “must be balanced against an employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business” and “an employee’s communications with the public may lose the protection of the Act if they are sufficiently disloyal or defamatory.” The key, however, is for the communications to “amount to criticisms disconnected from any ongoing labor dispute.”
In this instance, the activity was protected because it was “part of an ongoing sequence of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding.” The comments on Facebook were protected because “the discussion concerned workplace complaints about tax liabilities, [Triple Play’s] tax withholding calculations, and [the] assertion that [one employee] was owed back wages.” Also, the Facebook commentary was not so disloyal as to lose protection of the Act because “[t]he comments at issue did not even mention [Triple Play]’s products or services, much less disparage them.”
Triple Play violated the NLRA by (1) threatening employees with discharge for their Facebook activity; (2) interrogating employees about their Facebook activity; and (3) informing employees that they were being discharged for their Facebook activity. The Court also ruled that an internet/blogging policy would violate Section 8 “if it would reasonably tend to chill employees in the exercise of their Section 7 rights” and concluded that Triple Play’s policy did so violate Section 8 because “employees would reasonably interpret [Triple Play]’s rule as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by [Triple Play].”
In conclusion, your employees are going to talk about work online. Don’t react right away to commentary by your employees on social media. Social media has become, in just a few short years, a “meeting” place for employees to discuss work related issues. Sometimes posting are going to be potentially or borderline defamatory, disloyal, and perhaps unprofessional. Depending on the subject matter, they may also be protected by federal and/or state labor laws. Also, check your employee handbook. Do you have an internet or blogging policy? If not, you should. If you do, can it be interpreted to violate the NLRA? Talk to your attorney before making any decisions you may regret.