September 9th, 2014 By Virtual Paralegal Services

As new technology advances permeate our lives, employers sometimes struggle with keeping their policies and procedures in line with new developments. The internet and the huge popularity of social media outlets have created new arenas for employers to advertise, interact with potential and current customers, and create new streams of revenue. It also presents opportunities for individuals to interact with one another, share ideas, and present themselves to friends and strangers alike in an online forum. Sometimes, the online life of an employer collides with that of its employees.

Social Media Use Regarding the Workplace

The National Labor Relations Board (NLRB) recently released a decision involving employee use of social media to discuss employment while outside of the workplace. It rendered the decision in response to two cases involving a restaurant and several of its employees, Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone and Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Spinella.

The employer sports bar fired an employee after she posted a negative comment on Facebook about the company’s handling of employee tax withholdings. The company also fired another employee who “liked” the first employee’s comment. The employer had an “Internet/Blogging” policy that banned “inappropriate discussions” about the restaurant.

The National Labor Relations Act (NLRA) protects most private employees – not just unionized employees – in their right to engage in what it calls protected concerted activity. This protected activity allows employees to band together to discuss subjects that relate to the terms and conditions of employment such as hazardous work conditions or pay without being fired or otherwise penalized by their employers.

In its decision, the NLRB held that the firing of both employees at Triple Play Sports Bar violated the NLRA because the employees were engaged in protected activity. The NLRB decided that even the act of pressing the “like” button on the Facebook post constituted protected activity.

In looking at the Internet/Blogging policy, the NLRB determined that it violated Section 8(a)(1) of the NLRA. Among the reasons why it determined that the policy was in violation included:

  • employees would reasonably construe that the policy prohibited Facebook posts such as the one that led to the termination of the two employees;
  • the policy did not provide concrete, illustrative examples of what the employer considered to be “inappropriate discussions”;
  • the employer’s decision to terminate two employees based on the Facebook activity gave other employees an “authoritative indication” that the policy extended to protected activity; and
  • the policy was too broad and would likely have the effect of preventing employees from discussing the terms and conditions of their employment with one another.

The decision indicates that the NLRB is broadly interpreting the concept of protected activity to include certain actions taken on social media, including a “like” on Facebook.

Contact Us for Help with Compliance

Employers may wish to review their social media policies to ensure that they do not infringe upon protected activity. Virtual Paralegal Services assists employers with drafting policies and handbooks and can help with employee training on various human resources topics. Contact us today to discuss your particular needs.

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