On August 22, 2014, in Three D. LLC d/b/a Triple Play Sports Bar and Grille, the National Labor Relations Board (NLRB) held that an employer violated the National Labor Relations Act (NLRA) after terminating employees for commenting on and “Liking” a former employee’s Facebook post.

In January 2011, a former Triple Play employee complained on her Facebook page that Triple Play Sports Bar had failed to deduct the correct amount of state income tax from her paycheck. Two current employees “Liked” the comment and responded with similar complaints.  When they arrived for their shift the following day, the owner of Triple Play questioned them about the meaning of the “Like” selection and whether other employees participated in the discussion.  Following the interrogation, Triple Play terminated the employees.

The NLRB interpreted the “Like” as an expression of approval of the initial post and thus could qualify as protectable, concerted activity.  In their brief to the NLRB, Triple Play conceded that the string of Facebook posts constituted concerted activity about wages and income tax withholdings.  Triple Play, however, argued that the Facebook posts and “Like” lost the protections of the NLRA because they were disparaging and intended to undermine the owner’s authority in the workplace. The NLRA does not protect comments that are disloyal or defamatory.

The NLRB disagreed with Triple Play, finding that the posts were not intended to disparage its business to the general public.  Rather, the Facebook comments were more akin to a private conversation than a public declaration because they were made on a “personal” Facebook page.  The NLRB also found that the posts were not defamatory because there was no evidence that the employees’ complaints about incorrect income tax deductions were untrue.

The NLRB also determined that Triple Play’s social media policy violated the NLRA.  The policy prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers.”  Because the employer was the arbiter of what constituted an “inappropriate” discussion under the policy, the NLRB found that employees would reasonably understand the policy to mean they were precluded from making the type of comments about wages and withholdings at issue in the case.  If you’re looking for more information about how to craft a social media policy that is designed to meet the NLRB requirements, see our previous posts:

 

Heather Sherrod (heather.sherrod@nortonrosefulbright.com / +1 713 651 5163) is a lawyer in the US employment and labor practice.