Employer Cannot Terminate Non-Union Employees For Facebook Complaints About Work, NLRB Rules

The National Labor Relations Act (NLRA), generally speaking, entitles most employees to discuss or complain about work without repercussion from the employer. This right extends to discussions at workplaces without a union and where no union is even contemplated or desired. It also extends, as the NLRB affirmed last week, to social media.

In the case of Triple Play Sports Bar, employees and employee friends discussed their employer's bad payroll practices that led to employees owing more state income taxes than anticipated. An employee posted: "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!!!!" Three other employees commented on the above post, including one who called a boss an "a--hole." Non-employees also commented.

A three-member panel of the National Labor Relations Board unanimously ruled this conversation was protected by the NLRA and that an employee's "liking" of comments also was protected activity. The Board panel unanimously rejected the employer's claims that the employees lost the NLRA's protection because their comments were disloyal, defamatory and disparaging. Comments suggesting that the employer engaged in criminal behavior were made by non-employees and were not "liked" by employees. Also, the employee comments did not disparage the bar's food or drink, were not made on the bar's social media outlets, and were not directed by the public.

The Board's decision suggests that employee social media privacy settings and behavior (such as "liking" or favoriting comments) could factor into analysis in the future. In other words, an employee who restricts non-friends from viewing her social media is less likely to be found disloyal. An employee's "liking" of a co-worker's comment is more likely to mean that the discussion is protected but that "liking" of a defamatory comment (from a co-worker or non-worker) could result in the employee's actions being unprotected.

The Board ordered the employer to make the employees whole, pay them lost wages and benefits plus interest, pay for negative tax consequences of a lump sum payment, offer reinstatement to the two employees, revise its social media policy, and other appropriate relief.