It’s against a cultural backdrop of social media ubiquity and nonexistent online anonymity that today’s post vividly illustrates the tricky intersecting legal issues involving employee free speech rights and online privacy concerns.
In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), a Facebook on-employee group gripe session turned ugly for two of the participants when their boss – a sports bar owner – fired them after he found out they trashed him in a group message.
Seems the employees were upset that their employer miscalculated their income tax withholding amounts so they decided to air their grievances on Facebook. One employee (a claimant in the NLRB proceeding) blasted her employer (“what an asshole!”) while the other claimant said nothing: all she did was “like” another participant’s (an ex-employee) hostile comment about the tax mishap.
The National Labor Relations Board (NLRB or “Board” ) found that the employer violated the National Labor Relations Act (NLRA or “Act”) by firing the employees for their Facebook activity. The Board held the employees’ discussion was protected “concerted activity” that involved improving employment conditions. By firing the employees for protected activity, the employer violated the Act.
Section 7 of the NLRA protects employees’ rights to engage in concerted activity for their “mutual aid or protection.” 29 U.S.C. s. 157. This Section extends to social media comments that address improving workplace conditions or that vocalize legitimate employment concerns.
NLRA Section 8 outlaws an employer’s attempt to interfere with an employee’s exercise of concerted activity rights. 29 U.S.C. s. 158.
An employee’s concerted activity rights aren’t unlimited, though. The law recognizes that where an employee disparages an employer’s products or services or defames an employer, the employee’s conduct loses the Act’s protection.
For an employee communication to meet the defamation or disparagement test, the challenged statement must be false, malicious (knowingly or recklessly false) and it must cause damage.
The Board ruled that the employee comments were part of an conversation involving a legitimate workplace concern – employee tax liability.
The Board also found the simple act of “liking” a group member’s derisive comments about the boss merited Federal protection since it involved the other Facebook participants’ work-related concerns and opinions.
The Board rejected the employer’s argument that the “what an asshole” comment was defamatory and unprotected as a result. The Board stated that while the comment was certainly rude, it was protected as rhetorical hyperbole.
The Facebook invective wasn’t factual enough (after all, how do you objectively verify if someone is an a-hole?) to constitute defamation. And since neither employee claimant disparaged the sports bar’s services, the activity was protected.
The Board also struck the employer’s Internet policy on the basis that it encroached on employees’ protected rights under the NLRA. An employer social media policy violates the NLRA when it chills an employee’s concerted activity rights.
Here, the employer’s Web policy outlawed, among more specific items, “inappropriate” Internet use. The Board found the policy’s reference to “inappropriate” social media discussions was too vague and overbroad and could reasonably be viewed as punishing protected activity.
– The Board extends concerted employee activity to social media communications;
– An argument can be made in the wake of this decision that as long as an employee couches his inflammatory rhetoric beneath a veneer of legitimate workplace concerns, an employee’s comments are protected from employer retaliation.