“Like” Off: Facebook “Like” still at issue under NLRB social media policy

employees working over 40 hoursIn 2012 the National Law Review published my article discussing the relationship between social media and workplace harassment. In that article, I discussed a case arising from the National Labor Relations Board in which two employees were fired for allegedly violating the employer’s social media policy prohibiting employees from disparaging the employer online.

Here, the employer fired one employee for adding a comment to a discussion on Facebook about the employer’s payroll problems. The employer fired another for clicking “Like” on one of the comments. The employees filed a complaint with the National Labor Relations Board for violating the National Labor Relations Act. Section 7 of the National Labor Relations Act (NLRA) makes it illegal for an employer to prohibit or retaliate against employees who engage in concerted activities to improve their working conditions.

Labor law policies on social media and concerted activity under the National Labor Relations Act established by the NLRB

The National Labor Relations Board had set a policy a few years ago that section 7 applied to social media policies where employees might discuss among themselves workplace conditions and possible solutions. The NLRA typically relates to organized union activity but it covers informal organization by the employees to discuss and address workplace conditions. Since the NLRB handed down its social media rule, it has resolved a number of cases applying the rule that help set the contours of the policy. However, no appellate court has yet heard a case on the NLRB rule but it soon will.

Three D, LLC v. NLRB

The above-discussed Facebook “Like” case (Three D, LLC v. NLRB) will be the first case headed to an appellate court and appellate briefs have already been filed by the parties. The administrative judge in 2011 held the employer engaged in unfair labor practices related to the discharge of the employees. In August last year the NLRB heard the administrative appeal and affirmed the decision of the administrative judge. The employer has now appealed to the Second Circuit. Three key issues have been raised by the case.

Whether derogatory comments lose NLRA protections

First, whether the employee’s conduct was so derogatory that the employee lost the legal protections of section 7. (One comment included a WTF.) Second, whether the “like” was sufficient conduct to invoke the protection of section 7. Third, whether the employer’s social media policy prohibiting “inappropriate” discussions violated the NLRA. Each of the issues raised in the appeal will reverberate through future litigation.

The issue on the employee’s initial comment is a semi-novel issue. Most opinions discussing employees losing the protection of the NLRA through egregious conduct discuss conduct in the workplace. For example, a Starbucks employee making a loud protest of working conditions in a Starbucks apron in front of customers.

Here, the Facebook discussion included some non-employees (customers and former employees) but occurred entirely outside of the employer’s premises. Certainly employees continue to enjoy protections under the NLRA in their union halls and outside of the work premises; but the case raises the question whether an F Bomb in the union hall or outside work might derail NLRA protections.

If a Facebook Like is significant enough for protection under Section 7 of the NLRA

The second issue, whether the “like” was substantial enough to raise protection under section 7, may be unintentionally significant. As I discussed in my 2012 article, there is a division whether a “like” has significance that might implicate legal protections in employment law or give rise to claims for unlawful employment practices, namely a hostile work environment. What the Second Circuit says on the matter may have lasting effects on these other issues.

NLRB and employer social media policies

The third issue, however, will likely be the most important component of the court’s opinion. It will be the first appellate decision addressing the NLRB’s application of section 7 rights to employer social media policies. Many employers modified social media policies to avoid unfair labor complaints based upon the NLRB’s social media rule. If the Second Circuit rejects the NLRB’s rule employers might challenge the NLRB with a more conservative social media policy.

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