United States: Employers Are Not Going To "Like" This NLRB Decision On Social Media

The National Labor Relations Board ("NLRB") has issued yet another decision which should cause all employers, even those without unions, to think very carefully before disciplining any employee for their actions on social media.

In its recent Triple Play Sports Bar ruling, the Board found that clicking the "Like" button on Facebook was protected concerted activity. The factual background is as follows: Employees at a sports bar discovered their employer was under-withholding state income taxes and as a result, the employees were disappointed (to say the least) that they did not get the tax refund they were expecting. One former employee posted on his Facebook the following:

"Maybe someone should do the owners . . . a favor and do it for them. They can't even do the tax paperwork correctly!!! Now I OWE MONEY . . . wtf!!!"

Other employees joined the Facebook conversations about owing taxes, often using profanity in their comments. One current employee, a cook at the sports bar, clicked "Like" to the discussion which was highly critical of the owner's bookkeeping abilities. The cook and one other employee were summoned to the office and confronted with a printout of the Facebook page including the cook's "Like" as well as comments made by the other employee. Each was terminated for being disloyal and defaming the owners. The Board then found the terminations to constitute unfair labor practices committed by the employer.

The decision re-emphasizes the following key takeaways for all employers:

  • The fact that there are no labor unions at a workplace is not a bar to the NLRB enforcing employee rights for company's covered by the National Labor Relation Act ("NLRA"). All employees covered by the NLRA have the right to engage in "protected concerted activity."
  • Because the postings were communications done for the mutual aid and protection of employees concerning wages and conditions of employment, the employees' conduct was protected. Here, at least four current employees were complaining about their income tax withholding and their outrage over not getting refunds as a result of their employer's poor accounting practices.
  • Employees did not lose the NLRB's protection by "Liking" profanity laced commentary which was highly critical of the way their bosses ran the business.
  • The NLRB will balance employees' rights to engage in concerted activity against the employers' right to punish employees who are disloyal.
  • Most employers will not "Like" the way the NLRB balances the scales.
  • More and more, even non-unionized employees are turning to the Board as a forum to pursue their grievances against an employer, a forum that has proven to be exceptionally employee-friendly in previous years.

Frequently, employers become impulsively irate whenever they see public displays of disloyalty from their employees. A common mindset is if profanity is used by the employee and directed towards the company, then all bets are off and the employee should be fired. In this day and age of new social mores, social media and the "New NLRB," such employers may find the NLRB's scales have "balanced" against them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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