Employees’ Facebook Gripe Session Is Protected ‘Concerted’ Activity: Retaliation Firing Violates NLRA

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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.

Reasons:

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.

Afterwords:

– 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.

 

 

Defamation Law: The Qualified Privilege Defense (N.D. Ill.)

webIn Tamburo v. Dworkin, 2013 WL 5408540 (N.D.Ill. 2013), an Internet libel case, the Illinois Northern District examined the nature and reach of the qualified privilege and truth defenses to defamation claims filed by a software company against a defendant that made disparaging comments about the company on web message boards.

Facts:  Defendant, a professional dog breeder, created a website that provided free canine pedigree information to the dog-breeding community.  Plaintiffs created a Data Mining Robot that “harvested” defendant’s site data, packaged it and sold it to the public.  Defendant, irate that plaintiffs took defendant’s dog data without  permission, accused plaintiffs of stealing the pedigree information.  Plaintiffs sued for defamation and tortious interference with contract and prospective economic advantage.  Defendant moved to dismiss all counts of the complaint.

Holding: Defendant’s Rule 12(b)(6) motion to dismiss is granted.  All claims dismissed.

Reasoning:

The plaintiffs alleged that defendant’s venomous posts caused plaintiffs to fall into disrepute in the business community.  An Illinois defamation plaintiff must allege (1) a false statement about the plaintiff, (2) published to a third party, (3) that causes damage to the plaintiff.  *8. 

If its defamation per se (imputing commission of crime, infection with a loathsome disease, incompetence or lack of integrity in employment, adultery or fornication), the plaintiff doesn’t have to show special damages.  Common defamation defenses include truth, that the statement is capable of an innocent construction, the statement is an opinion (not factual), and the challenged statement is “rhetorical hyperbole.” *8.

Qualified Privilege Defense

Another defamation defense is the qualified privilege defense.  This applies where a statement implicates a legitimate interest of the speaker/publisher or an interest of the recipient of the statement/publication.  A prototypical example is a false statement that involves matters of important public concern.  

To defeat a qualified privilege defense, the defamation plaintiff must show (a) the statement was false; and (b) the defendant abused the privilege by intentionally publishing the falsehood or by displaying a “reckless disregard” concerning the statement’s truth or falsity.  Reckless disregard means the defendant “entertained serious doubts” about the truth of the statement yet failed to properly investigate its truth.  *11. 

The court held that defendant’s statements that plaintiffs’ principal was unethical and deceitful, while defamatory per se, were still non-actionable statements of opinion protected by the First Amendment.  In addition, defendant’s statements that plaintiffs stole (committed “theft”) defendant’s data and was engaged in “hacking” were substantially true: plaintiffs’ web trolling Robot did swipe data from defendant’s website without permission and later sold it for a profit.  *9,

The defendant also had a legitimate interest in protecting her time investment in compiling the pedigree information and there was a public interest in protecting private information from unconsented Web harvesting.  The Court also found that plaintiffs produced no evidence that defendant abused the qualified privilege by making the theft accusations recklessly or indiscriminately publishing them to unnecessary recipients.  *10, 13.

Finally, the Court found that defendant’s statement that the plaintiffs “took” defendant’s data and was “holding it hostage” were not actionable since the former statement was reasonably susceptible to an innocent construction (defendant didn’t literally mean that plaintiff removed the information from defendant’s site) and the latter “held hostage” statement was pure rhetorical hyperbole.  *15-16.

Case Lessons: It’s hard to prove defamation.  A defamation defendant has a varied arsenal of defenses including truth, innocent construction, opinion vs. fact and rhetorical hyperbole, among others.  The qualified privilege defense will apply where a defendant can show that he has a legitimate interest in the subject matter of the statement or if the statement implicates an important public policy interest.  In Tamburo, there an undercurrent (my interpretation) of the Court viewing plaintiffs’ practices as unfair: swiping or “scraping” the fruits of defendant’s labor (information compiled over a five-year period and provided free of charge to the pubic) and then trying to profit from it.   

 

7th Circuit Bounces Chicago Bull’s Legend’s Defamation Suit

Freepress_art_160_20080307145114In Pippen v. NBCUniversal Media, the 7th Circuit upheld the District Court’s dismissal of former hoops diety Scottie Pippen’s false light defamation complaint. Pippen sued NBC after several internet media outlets falsely reported that he filed for bankruptcy protection. The Northern District dismissed his claims on the basis that he failed to prove that the online media accounts were defamatory on their face and also couldn’t show actual malice by the defendant. The Seventh Circuit affirmed.

Reasoning: The two species of defamation (basically, a false statement published to a third party that is harmful) are: (1) defamation per quod – which requires a plaintiff to show that false statements caused him financial harm; and (2) defamation per se – statements so harmful on their face that damages to the plaintiff recipient are presumed (no proof of money injury is required).  Per se defamation includes false statements that plaintiff committed a criminal act, has a loathsome disease, lacks competence or integrity in his profession or false statements which impede a plaintiff in the pursuit of his trade or profession.  Bryson v. News America Publications, Inc., 174 Ill.2d 77 (1996).

Rejecting Pippen’s per se defamation claim, the Seventh Circuit held that a false media account of a personal bankruptcy was not equivalent to an outright false accusation that Pippen lacked ability in his trade or was somehow immoral.  NBCUniversal, p. 3.  Pippen’s post-NBA career includes public speaking appearances, product endorsements and working as a television basketball analyst.  A media report that he filed bankruptcy does not impugn his ability to carry out these jobs.  Id., p. 4.

The Court also found that Pippen’s defamation per quod claim failed.  While Pippen’s allegations of lost product endorsements and speaking engagement opportunities did satisfy the special damages pleading requirement for per quod defamation, his claim was defeated because he couldn’t show actual malice

Since Pippen is a public figure, he must show (i) defendant’s knowledge of falsity; or (ii) its reckless disregard for the truth of the published statement.  Id., p. 5; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).  The Court looked to U.S. Supreme Court precedent in rejecting Pippen’s argument that a failure to investigate whether he truly filed bankruptcy was enough to show a reckless disregard for the truth.  NBCUniversal, p. 6; Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).  The Court also discarded Pippen’s claim that the media outlets’ failure to retract the bankruptcy report after Pippen e-mailed them that he didn’t file bankruptcy demonstrated actual malice: a determination made at the time of publication.

Finally, the Court reaffirmed Illinois’ single publication rule, codified in 740 ILCS 165/1 (the Uniform Single Publication Act), ruling that defamation is “complete” at the time of the first publication and that subsequent repostings or publications do not trigger fresh libel (written defamation) claims.  NBCUniversal, p. 6.  Applying the single-publication rule to digital publications, the Court looked to other States’ precedents and adopted the policy argument that the rule should apply to online publishers.  Otherwise, the Court wrote, it would give rise to a never-ending multiplicity of suits against online media sources  exposing them to “potentially limitless liability.”  Id., p. 8.  On this point, the court shot down Pippen’s assertion that the single-publication rule shouldn’t apply to online media since they can easily retract erroneous information (with a click of a button). 

On the republication issue (defendant republishes a defamatory story) the Court did imply that if the defendant took an affirmative, independent action that republished a defamatory story, this could give rise to a defamation claim.  However, here, the Seventh Circuit (sitting in diversity) predicted that Illinois’ highest court wouldn’t deem the “passive maintenance of a web site” a republication for libel purposes.  Id., p. 9.

Conclusion: Apparently, one of the prices of fame (I wouldn’t know !) is that it’s hard for a public figure to state a defamation case against a printed or digital media source.  The case illustrates how high a proof burden the actual malice standard is for a celebrity/public figure plaintiff.  It surprises me that if a defamation plaintiff proves to a defendant that a defendant’s statement is false and the defendant fails to retract it (i.e. keeps it on the website), this will not show knowledge of falsity.  It seems to beg the question as to what conduct of a defendant does satisfy the knowledge of falsity or reckless disregard actual malice standard.  Lastly, the Court’s single-publication holding should be welcome news to Internet media sources since it protects them from potentially non-stop defamation claims with each day that a false story persists giving rise   to a fresh limitations period.

Link to opinion:

 http://www.isba.org/cases/7thcircuit/2013/08/21/pippenvnbcuniversalmediallc