On August 22, a three-member panel of the National Labor Relations Board (NLRB) concluded that the Triple Play Sports Bar and Grille had violated Section 8(a)(1) of the National Labor Relations Act (the Act) by discharging two employees for their participation in a Facebook discussion involving claims that employees unexpectedly owed additional state income taxes because of Triple Play’s withholding mistakes. The NLRB panel also concluded that Triple Play’s Internet/Blogging policy violated Section 8(a)(1) by prohibiting “inappropriate” discussions about the company.

In January 2011, two Triple Play employees discovered that they owed more money in state income taxes than they had expected. Several employees discussed the issue at work, and some of them complained to Triple Play. Triple Play planned a staff meeting to discuss the employees’ concerns. Before that meeting, a former Triple Play employee posted a “status update” to her Facebook page stating that the owners of Triple Play “can’t even do the tax paperwork correctly.” A number of comments were posted in response, with one Triple Play employee “liking” the initial status update and another commenting that she owes money too. Within several days, the employee who “liked” the initial status update and the employee who commented that she owed money too were both discharged.

An administrative law judge found that Triple Play had violated Section 8(a)(1) by discharging the two employees, and the NLRB panel agreed. Before the NLRB panel, Triple Play did not dispute that the Facebook discussion was concerted activity or that its employees have a protected right to engage in a Facebook discussion about its tax withholdings that looks toward group action. Instead, Triple Play argued that the initial Facebook status update included defamatory and disparaging comments, and that the discharged employees had adopted those comments, thereby losing the protection of the Act.

The NLRB concluded that the employees’ participation in the Facebook discussion – essentially expressing agreement with the initial post – had not lost the protection of the Act. The Board found that, even if other participants in the Facebook discussion had made unprotected statements, neither employee had endorsed such statements. The Board also found that the Facebook discussion was not directed to the general public, analogizing it instead to a conversation in the workplace that could potentially be overheard by a patron. The Board concluded that the employees’ comments were not so disloyal as to lose the Act’s protection, and their purpose was not to disparage Triple Play’s products or services or undermine its reputation. The Board also concluded that the employees’ Facebook comments were not defamatory, as Triple Play had failed to prove that the comments were maliciously untrue – i.e., made with knowledge of their falsity or with reckless disregard for their truth or falsity.

The NLRB panel also concluded that Triple Play’s Internet/Blogging policy violated Section 8(a)(1) of the Act, which prohibits rules that would reasonably tend to chill employees in the exercise of their Section 7 rights. (Section 7 provides employees with the right to act together to improve the terms and conditions of employment .) Although Triple Play’s policy did not explicitly restrict activities protected by Section 7, the panel concluded that employees would reasonably construe its language to prohibit protected Section 7 activity. The panel focused on the policy’s language prohibiting employees from “engaging in inappropriate discussions about the company,” which it found sufficiently imprecise that employees would reasonably understand it to include protected discussions.

Employers are reminded to review their online communications policies to ensure that, while prohibiting unlawful conduct that might be damaging to the employer, they keep such prohibitions sufficiently narrow and precise to avoid running afoul of the law.