Over the years, we have “followed” the NLRB’s analysis of employer social medial policies. You can catch up on this evolution by accessing our past HR Insights blogs on the NLRB and social media here.

Employee’s “Like” of Another’s Facebook Rant Is Protected

The evolution continues. On October 21, in an unpublished opinion, the Second Circuit (with district courts in Connecticut, New York and Vermont) affirmed the NLRB’s August 2014 decision in the controversial Triple Play Sports Bar case. The Second Circuit agreed with the NLRB that Triple Play had violated the law both when it fired several employees for what Triple Play felt were inappropriate Facebook posts about the company and where Triple Play’s policies prohibited “inappropriate discussions about the company, management, and/or coworkers.”

In this case, Triple Play (a sports bar and grill) fired two employees over their involvement in a Facebook discussion. One employee had “liked” a former employee’s post: “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 had posted: “I owe too. Such an [expletive deleted].”

There were other comments and at least one customer posted a sympathetic comment. As part of the Facebook thread, the former employee made other disparaging comments about the employer. The court affirmed the NLRB’s opinion that the terminations, even where viewed by a customer and related to the use of obscenities and negative comments about the employer, violated the National Labor Relations Act.

In regards to Triple Play’s policy against inappropriate discussions, the court affirmed the NLRB finding the rule illegal on its face because it could have a chilling effect on employees engaging in concerted activity. The policy was deemed illegal even though the NRLB agreed it was not drafted or implemented with any unlawful motive and did not expressly prohibit engaging in protected activities.

False and Inaccurate Statements Are also Protected

Triple Play also argued the employees’ Facebook statements were not accurate and so should not be afforded protection; however, the court upheld the NLRB’s view that “[t]he mere fact that statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue. Where an employee relays in good faith what he or she has been told by another employee, reasonably believing the report to be true, the fact that the report may have been inaccurate does not remove the relayed remark from the protection of the Act.” So, employers cannot assume the right to discipline even if what the employees say is false.

It is important to note that Triple Play has no unionized employees, and there was no union activity at the time. The Second Circuit finding against Triple Play reminds employers that concerted activity rules in labor law apply to most employers even when there is no current union organizing or unionized employees in the company. Public employers, such as public hospitals, while not within the NLRB’s jurisdiction, also have to consider how local labor laws and employee social media complaints implicate free speech rights.

Lessons for Employers

While the Triple Play decision is “unpublished,” which means other courts do not have to consider or follow the ruling, it is an example of how courts may not protect employers from the NLRB enforcing its broad view of protected employee activities on social media. Like it or not, when it comes to social media, the Triple Play decision affirms that a Facebook “like” is likely to constitute protected activity.

This decision reminds employers of both the risks involved in taking adverse action against employees for posting on social media and in having policies that have not been tailored to comply with the NLRB’s concerted activity rules. Now is a good time to take a look at your policies and edit as needed to minimize the risk of these kinds of claims. Employers are wise to pause and consider how best to protect their legitimate business interests without creating labor law liability when employees are using social media.

This decision helps employers understand more about this NLRB position on concerted activity in union and non-union workplaces. When employees complain together about anything relating to wages, even when customers are involved and the complaint includes disrespectful language, the employee may be protected against disciplinary action.

Not all inappropriate employee social media and Facebook complaints will be protected, but employers cannot assume the right to terminate when obscenities and customers are involved. The Triple Play decision does not mean employers are left without ways to protect their business interests from inappropriate employee posting on the internet. Instead, it helps predict how the NLRB and courts will respond, so policies and actions can be tailored to most effectively balance employee labor rights with legitimate business goals.

Reference: Triple Play v. NLRB, 2nd Cir. October 21, 2015.