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Facebook ‘like’ considered protected activity

published in McAfee & Taft EmployerLINC | November 11, 2015

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By Tony G. Puckett

Employers know that when it comes to employees discussing employment issues on social media, it is best for employers to tread carefully. A recent federal court of appeals decision confirmed that even a simple Facebook “like” can be protected employee activity under the National Labor Relations Act.

Employees terminated for liking Facebook post

In the case Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. NLRB, Case No. 14-3284 (2nd Cir. 2015), an employee “liked” a former employee’s status update on Facebook. The former employee’s status updated stated: “Maybe someone 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!!!!” Another employee commented on the status update: “I owe too.” The employer discharged the two employees.

The employees filed unfair labor practice charges with the National Labor Relations Board, alleging that their discharges violated their Section 7 rights under the NLRA. Section 7 grants employees the right to join and form labor unions, along with the right “to engage in other concerted activities for the purpose of … mutual aid or protection….” The employees’ charges were brought under the second prong; Section 7 applies to unionized employees as well non-union employees. The employees alleged that the Facebook “like” and the comment were concerted activities for the purpose of their mutual protection.

NRLB rules social media discussion is “concerted activity”

The Board found that the “like” and the comment by the employees were endorsements of the former employee’s claim that the employer had erred in her tax withholding. The Board determined that the Facebook activity was “concerted” because it involved four current employees and was part of an ongoing discussion that began in the workplace about the employer’s calculation of employee tax withholding. The Board decided the Facebook activity was protected because it was a discussion about workplace complaints over tax liabilities, tax withholding, and one employee’s claim that she was owed back wages.

The sports bar felt that the employees’ Facebook discussion disparaged the employer’s business and harmed the business’s reputation. An employee’s Section 7 rights are balanced against an employer’s interest in “preventing disparagement of his or her products or services and protecting the reputation of his or her business.” Therefore, an employee’s communications with the public may lose the protection of Section 7 if the comments are “sufficiently disloyal or defamatory.”

Employee comments may lose Section 7 protection if the statements amount to criticisms unrelated to any ongoing labor dispute. However, the Board requires that for a public statement to be defamatory, the statement must be made maliciously, meaning “with knowledge of its falsity, or with reckless disregard of whether it was true or false.” The fact that statements by employees are false, misleading or inaccurate is not sufficient to demonstrate that the statements were maliciously untrue. The Board has held that an employee can relay in good faith what the employee has been told without losing the protection of Section 7.

The Board addressed the employer’s arguments that the employees’ Facebook activity was so disloyal or defamatory that it lost Section 7 protection. The Board found that the employees’ “like” and comment did not lose the protection of the NLRA because the comments did not mention the employer’s products or services. The Board also found that the comments were not defamatory because there was no evidence that they were “maliciously untrue.”

Employer appeals, but to no avail

On appeal, the employer argued that the comments lost the Section 7 protection because they contained obscenities that were viewed by customers. The appeals court rejected the employer’s argument that the employee’s Facebook discussion took place “in the presence of customers,” stating that so holding “could lead to the undesirable result of chilling virtually all employee speech online” as almost all Facebook posts by employees have some potential to be viewed by customers. The court found that the comments in this case were not directed toward customers and did not reflect on the sports bar’s brand. Finally, the court stated that the Board’s decision that the Facebook activity at issue did not lose protection due to obscenities that could be viewed by customers “accords with the reality of modern-day social media use.”

As to whether the Facebook “like” and the comment about the employee’s taxes being concerted, the court agreed that the two employees’ communications were made to provide “mutual support looking toward group action” and not to disparage the employer or to undermine the employer’s reputation. The appeals court stated the Facebook discussion “clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw (the employee’s) like or the (other employee’s) statement could evaluate the message critically in light of that dispute.”

Takeaways for employers

This case is another lesson for employers that taking job action over employees’ social media communications can come back on the employer. Employees continue to turn to social media to air their complaints about their workplaces. As long as the social media posts concern workplace issues and are not clearly defamatory or disloyal, the employees are likely to have Section 7 protection in making the comments. Before taking job action, an employer should consider whether the posts harm the employer’s products or services, and whether the employer can prove an employee knowingly posted false information. A merely inaccurate statement will not satisfy this standard.

Practically, an employer may wish to consider whether focusing on employee social media posts will bring more attention to the comments from the public or the employer’s customers. With the volume of information on the Internet, relatively few employee posts are likely to gain enough attention to cause damage to an employer’s business.