Employers Be Warned; The NLRB Is An Email Away
By Neil A. Morris, Esq and Gabriel Celii, Esq In the old days, if a non-union, “at will” employee “mouthed off” about work issues to her fellow employees, or worse yet, cursing her employer, she would be fired on the spot. No muss, no fuss, no legal problem. In a decision on August 22, 2014, the National Labor Relations Board (“NLRB”) made it very clear that employers are operating quiet in a different legal environment. See Triple Play, Three a LLC, 361 NLRB No. 31 (8/22/14). To summarize, the NLRB found that if employees, in or out of the workplace, discuss work issues, even in a negative light, with other employees in person or on Facebook, Twitter or other social media, such discussion is deemed “concerted activity” and protected under the Section 7 of National Labor Relations Act. A former employee of Triple Play Sports Bar and Grill (“Triple Play”) posted messages on Facebook critical of Triple Play’s alleged improper tax withholding procedure which she believed resulted in her owing back taxes. Current employees then joined in the Facebook discussion with postings of agreement and comments which included expletives regarding the company. Triple Play had a general, very broad social media policy which essentially prohibited any employee from engaging in “inappropriate” conduct on-line. The word “inappropriate” was not defined. Upon learning of the Facebook discussion, Triple Play threatened legal action against the employees involved, then discharged two employees, one because he simply “liked” the posting, i.e., he hit his “like” key which attached to the posting. The Board determined that because the posting activity was outside of the workplace, on the employees’ own time and did not involve management at all, “The employees engaged in ‘concerted activity’ by taking part in a social media discussion among off site, off duty employees as well as two non-employees …” The NLRB held that although we do not condone the employees’ conduct, it was nevertheless protected under its interpretation of the act. The decision stated that the employees’ discussion of legitimate workplace issues online, their intent to discuss their issues and raise them at an upcoming work staff meeting, and their intent to file complaints with the government, appear to be a textbook example of employees “seeking to initiate, induce or prepare [protected] group action.” The NLRB ordered Triple Play to reinstate the two discharged employees, give them full back pay and amend its “Internet/Blogging” general policy. Triple Play has appealed the Board’s decision to Federal Court. Recommendations: First and foremost, an Employer should first develop a “thick skin” and afford employees some leeway in their criticism of their employer especially off duty. People complain and commiserate and they always will. Therefore, consult with labor counsel before taking any Disciplinary Action arising out of an employee posting negative comments directed to her employer on social media. Second, if the discussion is between employees and involves a work issue, no matter where it takes place, the activity will usually be considered “concerted” and “protected” by the NLRB. Third, make sure you have experienced labor counsel to keep the Company’s social media policies renewed and up to date, at least annually. The law in this area is constantly evolving and requires close legal scrutiny.
The Philadelphia Labor Group At Offit Kurman
ABOUT NEIL A. MORRIS
firstname.lastname@example.org| 267.338.1383 Neil Morris has passionately represented employers for the last 25 years. Mr. Morris specializes in the areas of labor and employment, municipal labor law, employment discrimination, defamation and business litigation. Mr. Morris has served as Special/Labor Counsel for more than 35 Pennsylvania Townships and Boroughs, the County of Bucks and many private employers. He is often brought into municipalities to handle “crisis” situations involving employees and/or management.
ABOUT GABRIEL CELII
Mr. Celii devotes his practice to general litigation. He has experience working on all phases of litigation and on cases ranging from antitrust and false claims recovery to contract disputes. In this capacity he has primarily devoted his efforts to the uncovering of information in support of claims and defenses through targeted discovery. Mr. Celii also assists businesses engaged in employment related disputes and negotiates settlements on their behalf. He has successfully enforced non-compete agreements and obtained liquidated damages on behalf of his clients. You can connect with Offit Kurman via Facebook, Twitter, Google+, YouTube, and LinkedIn. WASHINGTON | BALTIMORE | FREDERICK | PHILADELPHIA | WILMINGTON | VIRGINIA | NEW YORK