United States: Thumbs Down – NLRA's Expansion In The Workplace Continues With Appellate Affirmance Of Facebook "Like" Case: The Implications For Nonprofit Employers

The United States Court of Appeals for the Second Circuit recently affirmed the National Labor Relation Board's (NLRB) decision in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB, which held that Facebook "likes" and comments constituted protected activity under the National Labor Relations Act (NLRA). The Triple Play case is yet another example of the current NLRB's aggressive expansion into the nontraditional labor world, including nonprofit employers. The NLRA is not just about unions anymore.

The case arose from an employer disciplining employees who had made critical remarks on Facebook about a company error in improperly withholding payroll taxes, and disciplining an employee who simply "liked" those comments. The NLRB determined that an employee's "like" and comments on social media were protected activity under the NLRA, as they were in the context of a discussion among co-employees about a workplace issue.

The Second Circuit also upheld the NLRB's ruling that the employer's Internet and Blogging Policy violated the employees' rights under the NLRA, as it could be reasonably construed to prohibit Section 7 activity. Generally, absent an explicit restriction on activities protected by Section 7, a policy may violate the employees' Section 7 rights if it can be shown that: "(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 Rights." NLRB v. Martin Luther Mem'l Home, Inc. d/b/a Lutheran Heritage Village—Livonia, 343 NLRB 646, 647 (2004). Here, the rule indirectly proscribed any discussion between employees about the terms and conditions of their employment. As such, the Second Circuit agreed with the NLRB that Triple Play's Internet and Blogging Policy violated the NLRA.

Not all social media commentary is protected. The Second Circuit noted that an employee's behavior or communications may not be protected if they are "sufficiently disloyal or defamatory." In other words, an employee's statements may not rise to a level of criticism that goes beyond any current workplace dispute. In this case, however, the comments made on Facebook regarding the employer's tax withholding practices did not specifically disparage the employer's products or services, and were not maliciously untrue. The fact that obscenities were used in the Facebook discussion, which could be seen by Triple Play customers, did not elevate the behavior to unprotected activity.

All nonprofit employers – both union and non-union (most nonprofits are not unionized) – should be aware that any restrictions on employee discussions, communications, or activities may lead to unfair labor practice charges. In order to avoid any violations, nonprofit employers should consult with counsel before limiting these activities or taking any employment action against an employee who participates in such discussions or communications. Further, nonprofit employers must be conscientious of the wording in any of their Internet, blogging, social media, or other handbook policies, so that they neither explicitly nor implicitly restrict employees' rights under Section 7 of the NLRA.

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