Thumbs Down – NLRA's Expansion in the Workplace Continues with Appellate Affirmance of Facebook "Like" Case: The Implications for Nonprofit Employers

4 min

On October 21, 2015, the United States Court of Appeals for the Second Circuit issued a Summary Order affirming the National Labor Relation Board's (NLRB) decision in Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB (Triple Play), which held that Facebook "likes" and comments constitute protected activity under Section 7 of the National Labor Relations Act (NLRA). The Triple Play case is yet another example of the current NLRB's aggressive expansion into the nontraditional labor world, including nonprofit employers. The NLRA is not just about unions anymore.

Under Section 7 of the NLRA, employees have the right to "self-organization, to form, join or assist labor organizations…and to engage in other concerted activities for the purpose of…mutual aid or protection." Employers are prohibited from interfering with, restraining, or coercing employees who are exercising these rights in accordance with Section 8(a)(1) of the NLRA.

In the originating case, upon learning that Triple Play improperly withheld payroll taxes, one employee posted a comment on social media website Facebook complaining of the mistake. One status update at issue in the original Board decision stated, "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!!!!" A second employee liked this comment using Facebook's "like" feature. The employer terminated both the employee who posted the initial status update and the employee who liked the critical remarks on Facebook. The NLRB determined that the employees' "like" and comment on Facebook were both protected activity, as they were in the context of a discussion among co-employees about the employer's improper tax withholding. The Board found that this behavior, in this context, constituted concerted activity, and therefore was protected.

The Second Circuit also upheld the NLRB's ruling that the employer's Internet and Blogging Policy (the Policy), which prohibits employees from engaging in "inappropriate" discussions about the company, violated the employees' rights under the NLRA, as it could be reasonably construed to prohibit Section 7 activity. Generally, absent an explicit restriction on activities protected by Section 7, a policy may violate the employees' Section 7 rights if it can be shown that: "(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights." NLRB v. Martin Luther Mem'l Home, Inc. d/b/a Lutheran Heritage Village—Livonia, 343 NLRB 646, 647 (2004). Here, the Policy indirectly proscribed, and employees could reasonably interpret it as prohibiting, any discussion between employees about the terms and conditions of their employment. As such, the Second Circuit agreed with the NLRB that Triple Play's Internet and Blogging Policy violated the NLRA.

However, the NLRB and the Second Circuit did warn that not all social media commentary is protected. The Second Circuit noted that an employee's behavior or communications may not be protected if they are "sufficiently disloyal or defamatory." MasTec Advanced Techs., 357 NLRB No. 17, slip op. at *6 (2011). In other words, an employee's statements may not rise to a level of criticism that goes beyond any current labor dispute. In this case, however, the comments made on Facebook regarding the employer's tax-withholding practices did not specifically disparage the employer's products or services, and were not "maliciously untrue." Additionally, the fact that obscenities were used in the Facebook discussion, which could be seen by Triple Play customers, did not elevate the behavior to unprotected activity. The court noted that while customers did view or may have viewed the statements posted by the employees, the discussion between the employees on Facebook was not directed to the customers and "did not reflect the employer's brand." The NLRB commented that most social media posts are at risk of being viewed by at least some of the employer's customers. Applying an over-encompassing ban on employee speech on social media would have a chilling effect on employee speech generally. Therefore, Triple Play's termination of the two employees violated Section 8(a)(1).

Ultimately, the decision in Triple Play expands the protected rights of employees who use social media as a means of expressing opinions and facts about their employers. All nonprofit employers, both union and non-union, should be aware that any restrictions on employee discussions, communications, or activities may lead to unfair labor practice charges. In order to avoid any violations, nonprofit employers should consult with counsel before limiting these activities or taking any employment action against an employee who participates in such discussions or communications. Nonprofit employers must be aware of the baseline standard by which these comments are evaluated, and remember that the mere use of obscenities by an employee on a social media website that may be viewed by the employer's members, donors, constituency, or the like is not sufficient reason to discipline that employee. Furthermore, nonprofit employers must be conscientious about the wording in any of their Internet, blogging, social media, or other handbook policies, so that they neither explicitly nor implicitly restrict employees' rights under Section 7 of the NLRA.