Social Media Policies Revisited: The Facebook “Like” As Protected Activity

Zarou_Mechelle

Mechelle Zarou

The National Labor Relations Board (“NLRB”) continues to expand its reach beyond its traditional role involving unionized workforces. In particular, the NLRB has continued an aggressive campaign begun in 2011 to crackdown on all employer policies governing social media, electronic forums where more and more frequently employees are engaging in informal collective activity regarding their terms and conditions of employment.

The NLRB’s pronouncements in this arena apply to both union and non-union employers.  The NLRB, through its General Counsel, has concluded that employer policies prohibiting employees from discussing the terms and conditions of their employment on social media websites violate the National Labor Relations Act (“NLRA”) by interfering with workers’ rights to engage in protected collective activity.

As background, in a comprehensive Memorandum issued in May 2012, the Acting General Counsel commented on seven recent NLRB cases involving social media, finding in six of the cases that at least some of the provisions in employer social media policies overbroad and unlawful under the NLRA. See General Counsel Memorandum, Division of Operations-Management, OM-12-59, Report of the Acting General Counsel Concerning Social Media Cases (May 30, 2012).  The Acting General Counsel also found in the seventh case that WalMart’s social media policy, which was revised to comply with prior decisions and opinion memoranda, was lawful under the act.  The Acting General Counsel attached WalMart’s complete revised Social Media Policy to the Memorandum, as an example of a policy that provides rules that “clarify and restrict their scope by providing examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity.” See id. at 20.

Despite this explicit guidance, employers continue to struggle with overbroad and vague social media policies, and making disciplinary decisions that purportedly intrude on employees’ Section 7 rights to engage in collective activity to discuss work-related issues for the purpose of collective bargaining or mutual aid or other protection. Most recently, the NRLB issued a decision in Three D, LLC d/b/a Triple Play Sports Bar & Grille v. Sanzone and Three D, LLC d/b/a Triple Play Sports Bar & Grille v. Spinella, 200 LRRM 1569, 361 NLRB No. 31 (Aug. 22, 2014) (collectively Triple Play), holding that an employee who “likes” a status on Facebook is engaging in protected activity.

The NLRB affirmed the decision of the Administrative Law Judge (“ALJ”) that Triple Play had unlawfully discharged two employees for their Facebook activity, and had also violated the NLRA by threatening employees with discharge and interrogating employees about their Facebook activity, as well as informing employees they were being discharged because of their Facebook activity.  Triple Play also unlawfully threatened employees with legal action for engaging in that activity.  The NLRB also reversed the ALJ’s findings with regard to the employer’s Internet/Blogging policy, finding that the employer violated the NLRA by maintaining the policy.

In Triple Play, the employer had made a tax-withholding error, which resulted in employees owing an unexpected amount of state income taxes.  In the Facebook post at issue, a former employee had posted a Facebook status stating:  “Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the tax paperwork correctly!!!! Now I OWE money…Wtf!!!!”  Several current Triple Play employees and customers made comments about this post, including derogatory comments about one of the owners, along with a discussion about contacting the “labor board” to investigate money owed to employees by Triple Play.  The posts also discussed an upcoming employee meeting to address the tax withholding error.  Employee Jillian Sanzone, a waitress/bartender, chimed in on the discussion, posting “I owe too. Such an *ssh*le.”  Vincent Spinella, a cook at Triple Play, did not post a comment but clicked “like” on the original post.

One of Triple Play’s two co-owners found out about Sanzone’s and Spinella’s Facebook activity from his sister, who was Facebook friends with the former employee that made the original post. When Sanzone reported to work two days after posting her comment, Triple Play terminated her employment for “lack of loyalty” based on her Facebook post.  When Spinella reported to work the next day, Triple Play’s owners confronted him about his feelings toward the company and interrogated him about his clicking “like” on the post, asked for the identity of those who posted comments, and asked whether he had written anything negative about the owners.  The owners then stated that the “like” option meant that Spinella stood behind the other commenters, and because he liked the disparaging and defamatory comments, it was apparent that he wanted to work somewhere else.  One of the owners explained that his attorney told him to discharge anyone involved in the Facebook conversation for defamation, and discharged him.  As Spinella was leaving, he was told “You’ll be hearing from our lawyers.” Spinella indeed received a letter threatening a defamation action from Triple Play’s attorney, although no legal action was taken against him.

The ALJ concluded that the Facebook activity was concerted activity, since it involved four current employees and was part of an “ongoing sequence” of discussions that began in the workplace about the miscalculation of taxes. In the Facebook post, the employees discussed issues that they intended to raise at the staff meeting, as well as possible avenues for complaints to government entities; thus they were seeking to initiate, induce or prepare for group action.  The ALJ found both Sanzone and Spinella were engaged in protected concerted activity, since Sanzone directly complained about the error and since Spinella’s selection of the “like” button expressed his support for the others who were sharing their concerns.  The ALJ rejected the employer’s contention that because of the allegedly defamatory and disparaging comments, the Facebook posts lost the protection of the NLRA.

The NLRB affirmed the ALJ’s conclusion that the comments were statutorily protected, but used a different line of cases to analyze the issue than the case relied upon by the ALJ. Nevertheless, the Board concluded the discharges were unlawful, because “the communication indicated it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” Id. at 1575.  Further, the derogatory comment was not defamatory, since it was not “maliciously untrue” and merely expressed Sanzone’s personal opinion. Id. at 1576.  Thus, the NLRB held that the ALJ had correctly found the discharges unlawful.

The NLRB next considered whether the employer’s Internet/Blogging policy violated the NLRA. Because employees reviewing the policy could reasonably construe the policy to prohibit the type of protected Facebook posts that led to the unlawful discharges, the NLRB found the policy unlawful.  Specifically, the policy provided that “when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees . . . engaging in inappropriate discussions about the company, management and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.” Id. at 1577.  The General Counsel urged the NLRB to find that the prohibition on “inappropriate discussions” was overly broad, since employees “would reasonably construe the policy to prohibit their Section 7 activities.” Id. at 1578. Since the policy lacked illustrative examples to employees of what the employer considered inappropriate, the NLRB agreed with the General Counsel that the policy was unlawful.

In light of the Triple Play analysis, employers considering discipline due to an employee’s Facebook activity should avoid knee-jerk reactions, and instead consult with counsel to fully consider whether social media activity is so disparaging and defamatory as to lose the protections of the NLRA.  Further, it is even more critical for all employers to review their social media and online networking policies to ensure that they provide concrete examples of prohibited behavior such that an employee would not construe the policy as prohibiting Section 7 collective activity.  Since the NLRB has not hesitated to take action against non-union employers, as well as those with a unionized workforce, all employers must abide by the NLRB rulings.  Please contact Mechelle Zarou for assistance in navigating these uncharted waters.