On August 22, a three-member panel of the National Labor Relations Board (NLRB) concluded that the Triple Play Sports Bar and Grille had violated Section 8(a)(1) of the National Labor Relations Act (the Act) by discharging two employees for their participation in a Facebook discussion involving claims that employees unexpectedly owed additional state income taxes because of Triple Play's withholding mistakes. The NLRB panel also concluded that Triple Play's Internet/Blogging policy violated Section 8(a)(1) by prohibiting "inappropriate" discussions about the company.
In January 2011, two Triple Play employees discovered that they
owed more money in state income taxes than they had expected.
Several employees discussed the issue at work, and some of them
complained to Triple Play. Triple Play planned a staff meeting to
discuss the employees' concerns. Before that meeting, a former
Triple Play employee posted a "status update" to her
Facebook page stating that the owners of Triple Play
"can't even do the tax paperwork correctly." A number
of comments were posted in response, with one Triple Play employee
"liking" the initial status update and another commenting
that she owes money too. Within several days, the employee who
"liked" the initial status update and the employee who
commented that she owed money too were both discharged.
An administrative law judge found that Triple Play had violated
Section 8(a)(1) by discharging the two employees, and the NLRB
panel agreed. Before the NLRB panel, Triple Play did not dispute
that the Facebook discussion was concerted activity or that its
employees have a protected right to engage in a Facebook discussion
about its tax withholdings that looks toward group action. Instead,
Triple Play argued that the initial Facebook status update included
defamatory and disparaging comments, and that the discharged
employees had adopted those comments, thereby losing the protection
of the Act.
The NLRB concluded that the employees' participation in the
Facebook discussion – essentially expressing agreement with
the initial post – had not lost the protection of the Act.
The Board found that, even if other participants in the Facebook
discussion had made unprotected statements, neither employee had
endorsed such statements. The Board also found that the Facebook
discussion was not directed to the general public, analogizing it
instead to a conversation in the workplace that could potentially
be overheard by a patron. The Board concluded that the
employees' comments were not so disloyal as to lose the
Act's protection, and their purpose was not to disparage Triple
Play's products or services or undermine its reputation. The
Board also concluded that the employees' Facebook comments were
not defamatory, as Triple Play had failed to prove that the
comments were maliciously untrue – i.e., made with knowledge
of their falsity or with reckless disregard for their truth or
falsity.
The NLRB panel also concluded that Triple Play's
Internet/Blogging policy violated Section 8(a)(1) of the Act, which
prohibits rules that would reasonably tend to chill employees in
the exercise of their Section 7 rights. (Section 7 provides
employees with the right to act together to improve the terms and
conditions of employment .) Although Triple Play's policy did
not explicitly restrict activities protected by Section 7, the
panel concluded that employees would reasonably construe its
language to prohibit protected Section 7 activity. The panel
focused on the policy's language prohibiting employees from
"engaging in inappropriate discussions about the
company," which it found sufficiently imprecise that employees
would reasonably understand it to include protected
discussions.
Employers are reminded to review their online communications
policies to ensure that, while prohibiting unlawful conduct that
might be damaging to the employer, they keep such prohibitions
sufficiently narrow and precise to avoid running afoul of the
law.
Originally published on the Employer's Law Blog
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