NLRB Says Owners Acted Unlawfully by Firing Employees for Facebook Conversation, Orders Reinstatement with Back Pay

On August 22, 2014, the National Labor Relations Board released its Decision and Order in a pair of cases against Respondent Three D, LLC d/b/a/ Triple Play Sports Bar and Grille (“Triple Play”). The cases were brought by two former employees who were fired in 2011 in response to a conversation they had on Facebook about their employer.

The panel of three Judges agreed that the Triple Play violated the National Labor Relations Act (NLRA) by terminating two employees for participating in a Facebook conversation during which they criticized and complained about their employer. This Facebook conversation began when one of the employees posted the following status update:

“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!!!!”

Other employees joined the conversation, which centered around the company’s withholding too little from their paychecks for state tax, causing each of them to receive an unexpected tax bill at the end of the year. Section 7 of the NLRA grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection;” Section 8(a)(1) then prohibits an employer from acting so as to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” The Board decided that Triple Play had violated these sections of the Act because this Facebook conversation by the employees was “concerted activity” by the employees “for the purpose of…mutual aid or preservation,” and therefore protected by the NLRA. Criticism, even including some potentially offensive language, is generally protected under the law.

The Judges acknowledged the need to balance the law’s protection of concerted activity by employees against the employer’s need to protect its reputation by preventing employees from publicly disparaging the company or discussing its confidential information. In the present case, Triple Play argued that the employees had lost the protection of the Act by demonstrating disloyalty to, and making defamatory and disparaging comments about, their employer. The Board made several interesting determinations about this defense: first, that the comments were about the employees’ working conditions, not e.g. about the company’s product, and thus protected; second, that the correct legal standard, from Linn, was that the NLRA protected employees’ complaints against their employer unless those complaints were “circulated with malice:”–that is, either “with knowledge of their falsity, or with reckless disregard of whether it was true or false.” The complaints made by employees in this case were not malicious in this sense; third, and most interestingly, that the context of this conversation, whether or not the participants’ Facebook settings made their comments private, were “not directed to the general public,” and thus more akin to private conversation than public pronouncements.

Upon learning about this Facebook conversation, the owners of Triple Play met with the employees, interrogated them about their posts, issued several threats including the threat of a lawsuit, then ultimately terminated them.

In its decision the Board addressed one other important issue. Reversing the decision of the Administrative Law Judge who first heard the case, the Board concluded that Triple Play’s Internet/Blogging policy itself violated the NLRA by being too broad. Following the legal reasoning in many recent cases, two of the three judges found that the language of the company’s social media policy, with its general prohibition on “inappropriate discussions about the company, management, and/or coworkers,” could reasonably be interpreted by employees as prohibiting “discussions and interactions protected by Section 7” of the Act.

The internet is where a lot of pro-labor conversation happens nowadays, and–much to the chagrin of companies and their lawyers–courts and regulators are beginning to recognize this fact and extend the NLRA’s protection to various social media.

If you are an employee and you believe your rights under the National Labor Relations Act have been violated, please contact The Harman Firm, LLP.