By Brett Schneider
In two companion cases, the National Labor Relations Board (the “Board”) recently addressed issues involving an employee’s offsite use of social media to communicate with other employees. Therein, the Board found that the employer violated the National Labor Relations Act (“Act”) when it terminated an employee who “liked” a former co-worker’s negative comment about the employer posted on Facebook and terminated another employee for posting an expletive comment about the employer in response to the former co-worker’s comment. The Board also found that the employer threatened and coercively interrogated the employees in violation of the Act and that the employer’s “Internet/Blogging” policy banning “inappropriate discussions” regarding the company unlawfully chilled employees’ exercise of their right to engage in protected, concerted activity under the Act.
The two employees at issue participated in a Facebook discussion in which four of the company’s current employees expressed displeasure with the employer over the employer’s handling of a state income tax matter. One employee commented that the employer was an “a – – hole” and the other employee “liked” the comment that started the discussion, which was posted by a former employee.
The Board agreed with administrative law judge’s (“ALJ”) finding that the Facebook discussion was concerted activity because it involved four current employees and was part of an ongoing sequence of discussions that began in the workplace about the employer’s tax treatment of their earnings. Thus, the Board found the employees had been terminated in violation of the Act. In so doing, the Board rejected the employer’s argument that the employees’ Facebook activities were defamatory and disparaging and, as such, lost the protection of the Act. The Board, however, rejected the ALJ’s finding that the employer’s Internet/Blogging policy did not violate the Act. Instead, the Board held that employees would reasonably construe the policy to prohibit protected Facebook posts such as the ones that led to the termination of the employees.
Brett Schneider is the Chair of the Labor and Employment Practice Group and is Board Certified by The Florida Bar in Labor and Employment Law. He represents employers in collective bargaining negotiations, labor impasse hearings, unfair labor practice proceedings and labor arbitrations.
