By Allegra A. Jones
The U.S. Court of Appeals for the Second Circuit recently decided that a sports bar in Connecticut violated the National Labor Relations Act (NLRA) when it terminated two workers for commenting on and “liking” a Facebook post. Specifically, an employee posted a derogatory “status update” noting that the owners of the bar “can’t even do tax paperwork correctly,” since employees owed more in state income taxes than they expected due to a tax withholding error. The post initiated a series of comments which the boss was called an “asshole.” The National Labor Relations Board (NLRB) found, and the Second Circuit affirmed, that terminating the employees due to their Facebook activity was unlawful. (Three D LLC v. NLRB (2d. Cir. 10/21/15) Case #14-3284, appealed from 2014 NLRB LEXIS 656 (8/22/2014).)Under the NLRA, employees have the right to engage in concerted activity undertaken for the employees’ collective bargaining or mutual aid and protection. This includes discussing “terms and conditions of employment” such as wages, policies, or employees’ treatment in the workplace. Employers cannot engage in unfair labor practices, which include interfering with, restraining, or coercing employees in the exercise of their rights related to engaging in concerted activity. (NLRA, Sections 7 and 8.)
It’s no surprise that a restaurant or other company will want to prevent defamation or disparagement that’s bad for business. Thus, an employee’s Section 7 rights must be balanced against the employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business. (Three D, supra, at p. 3, citing Valley Hosp. Med. Ctr., Inc., 351 NLRB 1250, 1252–53 (2007).)
In Three D, the Second Circuit agreed with the NLRB that the Facebook activity was protected, concerted activity as it concerned workplace complaints about tax liabilities and was part of an ongoing discussion that began in the workplace. The context of the Facebook comments was key. Further, the court held that the comments were not so disloyal and defamatory as to lose the protection of the NLRA. Although the Second Circuit refused to publish the opinion and establish it as precedent, the case is a good reminder that the employee’s and employer’s interests must be weighed, and “liking” a Facebook comment can be protected activity covered by federal labor laws.
Labor groups argue that Twitter, Facebook and other social media outlets are an important tool for worker collective action in the modern era. Social media is now the “virtual water cooler” where coworkers “meet” to discuss workplace issues. Although a Facebook post could be considered unprofessional, disloyal and disparaging, it could also be protected under federal labor laws depending on its substance and context. Employers who learn of employees’ comments on social media should consult an experienced attorney to determine the best course of action given the particular context and the jurisdiction.