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Employers can look to a series of National Labor Relations Board cases when considering acting against employees for social media comments.
A 2014 National Labor Relations Board case, Three D L.L.C. d/b/a Triple Play, involved “likes” and a Facebook discussion by two employees related to claims that employees unexpectedly owed additional state income taxes because of the firm’s withholding mistakes. The two employees were later fired by their restaurant employer, an action the board found to be unlawful.
Section 7 of the National Labor Relations Act provides employees the right to discuss wages, hours and other terms and conditions of employment with fellow employees as well as nonemployees, meaning a workplace policy that prohibits discussions of identified Section 7 topics, or that an employee would reasonably understand to prohibit such discussions, violates the statute, according to the panelists at the American Bar Association’s annual Labor and Employment Law Conference in Washington last month.
A separate 2014 NLRB case involving Richmond District Neighborhood Center resulted in the loss of protected status for a Facebook conversation between two employees of an after-school program. The employees complained about management online and their plans for the program and the organization rescinded the employees’ rehire offers. The employees lost their protected status under Section 7 because the Facebook exchange contained several statements advocating insubordination in specific detail, the board said.
“I’m not going to represent these guys,” Julia Campins, an attorney with Lafayette, California-based Campins Benham-Baker P.C., said at the ABA conference. “They’re not showing great judgment skills, but I would want to know more about their complaints. Are they complaining about management in the way they’re treating the clientele, in the way they’re treating employees, or are they just complaining? How harmful were their complaints to the business of the employer?”
In a 2014 NLRB case known as Purple Communications Inc., the agency set out a new rule allowing employees access to company-owned email systems for protected Section 7 activities on nonworking time, overruling a 2007 precedent that employees have no statutory right to use their employer’s email systems for Section 7 purposes, according to the panelists. The case emanated from a communications technology company that had an email policy stating that communications sent via all equipment provided and maintained by the company were the sole and exclusive property of the company.
“As a practical matter, a policy like this could never be enforced, at least not on a consistent manner, which then limits your ability to act on any violations of it,” said Melinda Burrows, senior legal director with software company NetScout Systems Inc. in Westford, Massachusetts.
Social media can be a public minefield for employers, requiring them to develop and implement practical, enforceable social media policies while also carefully considering when to discipline employees for violating those policies.