{"id":81,"date":"2015-11-12T19:13:00","date_gmt":"2015-11-12T23:13:00","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/thelegaldish\/?p=81"},"modified":"2020-08-04T16:42:59","modified_gmt":"2020-08-04T20:42:59","slug":"firing-staff-who-call-boss-ahole-or-like-on-facebook","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/thelegaldish\/2015\/11\/12\/firing-staff-who-call-boss-ahole-or-like-on-facebook\/","title":{"rendered":"Firing Staff Who Call the Boss an \u201cA*#hole\u201d or \u201cLike\u201d Such Criticism on Facebook"},"content":{"rendered":"
\"Capture\"<\/a>
Image credit: Facebook<\/figcaption><\/figure>\n

By Allegra A. Jones<\/strong><\/em><\/p>\n

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 \u201cliking\u201d a Facebook post. Specifically, an employee posted a derogatory \u201cstatus update\u201d noting that the owners of the bar \u201ccan\u2019t even do tax paperwork correctly,\u201d 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 \u201casshole.\u201d 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<\/em> (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\u2019 collective bargaining or mutual aid and protection. This includes discussing \u201cterms and conditions of employment\u201d such as wages, policies, or employees\u2019 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.)<\/p>\n

It\u2019s no surprise that a restaurant or other company will want to prevent defamation or disparagement that\u2019s bad for business. Thus, an employee\u2019s Section 7 rights must be balanced against the employer\u2019s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business. (Three D, supra<\/em>, at p. 3, citing Valley Hosp. Med. Ctr., Inc<\/em>., 351 NLRB 1250, 1252\u201353 (2007).)<\/p>\n

In Three D<\/em>, 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\u2019s and employer\u2019s interests must be weighed, and \u201cliking\u201d a Facebook comment can be protected activity covered by federal labor laws.<\/p>\n

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 \u201cvirtual water cooler\u201d where coworkers \u201cmeet\u201d 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\u2019 comments on social media should consult an experienced attorney to determine the best course of action given the particular context and the jurisdiction.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201cliking\u201d a Facebook post. Specifically, an employee posted a derogatory \u201cstatus update\u201d noting that the owners of the … <\/p>\n

Continue reading “Firing Staff Who Call the Boss an \u201cA*#hole\u201d or \u201cLike\u201d Such Criticism on Facebook”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[181,71,28,70,68,72,73,37,59,69],"ppma_author":[201],"class_list":["post-81","post","type-post","status-publish","format-standard","hentry","category-general","tag-allegra-a-jones","tag-employee-termination","tag-employment-law","tag-facebook","tag-labor-law","tag-nlra","tag-nlrb","tag-restaurant","tag-restaurants","tag-social-media"],"authors":[{"term_id":201,"user_id":6,"is_guest":0,"slug":"duanemorris3","display_name":"Duane Morris","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/843ff6e7a8fe5fc92109b47a45f34b6cf0ea499e6e788db23456c838b0ae6747?s=96&d=blank&r=g","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/posts\/81","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/comments?post=81"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/posts\/81\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/media?parent=81"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/categories?post=81"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/tags?post=81"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/thelegaldish\/wp-json\/wp\/v2\/ppma_author?post=81"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}