No Employer Should "Like" the NLRB's Evolving Position on Social Media

As employers continue to struggle with the proper balance for regulating employees’ use of social media to discuss their workplace, the National Labor Relations Board (NLRB) has issued a string of counterintuitive rulings that further tie the hands of employers to address employee commentary in arguably public forums.

In Three D, LLC D/B/A Triple Play Sports Bar and Grille (Triple Play), 361 NLRB No. 31 (2014) four employees of Triple Play and a former employee engaged with others (including customers) in a dialogue on Facebook regarding Triple Play’s failure to properly compute employee taxes. One employee posted, “I owe too. Such an a**shole,” in reference to one of the owners of the company.

Another employee responded to the former employee’s post with a “like” to the statement:

“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!!!!”

Triple Play subsequently terminated both employees, claiming lack of loyalty, and interrogated the employee who “liked” the former employee’s post about other participants in the dialogue. Triple Play also intimated it would bring a cause of action for defamation against the employee for “liking” the post.

The NLRB found the actions of Triple Play, and the underlying policy, unlawful. The NLRB opted to analyze whether the statements made by employees amounted to disloyal or defamatory statements such that they lost the protection of the National Labor Relations Act (Act), a departure from previous NLRB precedent.

The NLRB decided that the comments from both employees were protected and concerted, and not sufficiently disloyal to lose the protection of the Act. The NLRB premised this conclusion on the observation that the comments did not disparage, or even mention, the products or services that Triple Play supplied, arguably clearing the way for personal attacks on employer representatives. The NLRB also reasoned that the comments at issue were not “maliciously untrue” and a result, did not give rise to a defamation claim.

Significantly, under the NLRB’s analysis, Triple Play’s policy on internet/blogging chilled employees’ exercise of the rights under the Act. It provided, in part, that employees who engaged in “inappropriate discussions” about Triple Play could be subject to discipline up to and including discharge. The NLRB determined that the imprecise nature of the term “inappropriate discussions” could lead employees to believe it encompassed discussions about terms and conditions of employment. The NLRB noted that Triple Play failed to cite specific examples of prohibited conduct.

While unfortunate and not particularly logical, the ruling in Triple Play is not surprising, as it represents but one of the most recent in a string of NLRB rulings curtailing the ability of employers to effectively address employee conduct and communication. For example, in Durham School Services, 360 NLRB No. 85 (2014), the social media policy admonished employees to curtail contact with parents and school officials and to keep all such contact appropriate. The policy further dictated that all communications with coworkers should be respectful and professional, even if they occurred outside of working hours. The NLRB found the policy impermissibly broad, again citing a lack of specificity.

Similarly, in Laurus Technical Institute, 360 NLRB No. 133 (2014), the NLRB struck down the employer’s “No Gossip Policy,” which prohibited employees from gossiping about customers, employees or the company. In finding the policy overly broad, the NLRB pointed to the ambiguity of the policy and its lack of clarity.

Practical Tips for Employers:  (1) In light of the clear trend of the law, employers should revisit their social media policies to attempt to comply with the NLRB’s overreaching stance. The more narrow and specific the policy (complete with examples of prohibited conduct), the more likely it is to survive NLRB scrutiny. Remember, a policy the NLRB deems unenforceable is equivalent to having no policy, and any action taken under it, such as terminating employees for its violation, runs the risk of reversal by the NLRB; and (2) in evaluating whether to discipline employees under an existing social media policy, employers must carefully assess the content of the communication.  If any portion of the discourse pertains to terms or conditions of employment, the employer acts at its peril in taking adverse action.

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