NLRB Invalidates Employer’s Blogging Policy And Reverses Firing Based On Facebook Posts

September 27, 2014 · by Venkat Balasubramani · in Content Regulation

This is another NLRB Facebook firing case. The employer is a bar and restaurant whose employees were chatting on Facebook about owing amounts in taxes allegedly as a result of paperwork mishaps on the employer’s part. LaFrance, a former employee posted:

[m]aybe someone should do the owners of TriplePlay a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…..Wtf!!!!

The following responses ensued:

You owe them money..that’s fucked up [a Facebook friend and customer]

I FUCKING OWE MONEY TOO! [current employee]

The state. Not Triple Play. I would never give that place a penny of my money. [The owner] fucked up the paperwork…as per usual [the former employee who started the thread]

Yeah I don’t go to that place anymore. [Facebook friend and customer]

It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks. [the former employee]

…

[Spinlella, another employee, did not comment, but clicked the “like” button.]

I owe too. Such an asshole. [Sanzone, another employee]

Some time later, Sanzone was advised that she was being let go. While she thought at first that her firing was a joke, the company reiterated and told her she was being terminated for disloyalty.

shutterstock / chrisdorney: “You’re Fired Rubber Stamp Over a White Background”

Spinella, following what appeared to be a lengthy interrogation on the mechanics of Facebook, was also let go (while the parties discussed the “like” button at length, Spinella was purportedly terminated for other reasons).

The employer did not relent, and unleashed its lawyers on Sanzone and LaFrance, demanding that they retract the Facebook comments. Sanzone could not delete the comment that was posted to LaFrance’s page and asked LaFrance to delete Sanzone’s comment, which she did. LaFrance posted a retraction in response to the letter she received, and the lawyers pressured Sanzone to do the same, arguing that deletion is not the same as retraction. [Whatever sympathy I had for the employer when I first read the facts has pretty much run dry at this point.]

The employer also had an internet/blogging policy that read as follows:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect. [emphasis added]

The board concludes that the employees in question were engaged in concerted activity when they participated in the Facebook discussion. Wages and tax issues are directly related to employment, and the fact that the discussions took place on Facebook does not change their character as collaborative. The board also says that Spinella’s use of the like button was sufficient to convey his participation. The key question was whether the comments lost their protective character and crossed over into the territory of disparagement.

Applying the balancing test used for out-of-workplace interactions, the board says the employees’ comments did not cross the line. In doing so, the board looks to the context of the discussions and the fact that the statements were not made to the general public (the court cites to the vague privacy settings but notes that the page was in the nature of a semi-closed discussion). The board also says that the particular speakers in question cannot be responsible for the comments of others, except for those that they specifically adopted. While some participants may have crossed the line and have engaged in unprotected activity, this does not transform the nature of the others’ participation. The board thus concludes that the discharges violated the Act.

The board also looks at the employer’s internet and blogging policy and finds it problematic. In particular, the putative prohibition on “inappropriate discussions about the company, management, and/or coworkers” on social media could be viewed by employees to chill protected activity. Indeed, the discharges in question reflect the employer’s authoritative interpretation of the scope of the policy, and confirm that it could reasonably be interpreted to encroach on the sphere of protected activity. One board member dissented from this last finding.

Another case where the “like” button has legal consequences. (Cf. Bland v. Roberts.) I love it! Given the decidedly ambiguous nature of “likes” (it’s not uncommon for people to “like” obituary posts) it seems petty on the part of employers to terminate someone on the basis of liking a post. Perhaps the board had a similar instinct.

The case also reflects the disparate rules various types of employers face in disciplining or terminating their employees. As we’ve blogged, outcome of the public employee cases are tough to predict. What appears to be in a statement of public interest in one case is treated as mere (and possibly disruptive) venting in another. It’s similarly tough to ascertain a clear rule for private employers. Even as a private employer, if your reason for discharge relates to something that may touch on the terms of employment (and we’ve seen examples of how this can be broadly construed), you should tread carefully. On the other hand, numerous cases have approved employee firings based on statements that call into question their underlying judgment and decision-making ability (e.g., teachers, nurses, administrative adjudicators). [From an employee’s perspective, if you’re going to complain, don’t do it about your customers; kvetch about your boss instead?] It’s also interesting and somewhat comforting that the board took the trouble to separate out statements made by the individual employees and others—mere participation in a discussion even when others engage in non-protected acvitity or cross the line is not enough to disqualify you from protection.

Even more interesting than the firing ruling is the finding regarding the no-blogging/internet usage policy. I don’t have a sense of clear rules. (See a prior post from 2011 on similarly muddled guidance: “Overreacting Guidance for Social Networking Du Jour — NLRB Edition“.) Perhaps a scaled back policy that references things like trademark usage, trade secrets, etc. (clear cut legal rules) is prudent, and any attempt to vaguely prohibit inappropriate, offensive, disparaging discussions should be avoided?

Case Citation: Three D, LLC d/b/a Triple Play Sports Bar and Grille and Jillian Sanzone / Spinella, 34-CA-012915

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