The Second Circuit ​“Likes” the NLRB’s Reasoning

In recent years, the National Labor Relations Board has tended to protect employees’ social media activity against employers. A few weeks ago, the Second Circuit upheld a decision of the National Labor Relations Board (“NLRB”) that a business violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it fired an employee for his Facebook activity and by maintaining an overbroad “Internet/Blogging” policy.

For background, Section 7 of the NLRA guarantees that “employees shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . .” Section 8(a)(1) of the Act protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7]…”

In the instant case, two current employees learned they owed more in state income tax than they had originally expected. The employees complained to management. The discussion continued on Facebook. A former employee posted: (1) “Maybe someone should do the owners of [the business] a favor and buy it from them. They can’t even do the tax paperwork correctly!!!Now I OWE money . ..W[*]f!!!;” (2) “It’s all [the owner’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;” and (3) references to the owner as a “shady little man” who probably “pocketed it all from our paychecks.” The owner fired a current employee because he “liked” the former employees post.

The NLRB and the Second Circuit agreed that firing an employee for “liking” a Facebook post was a violation of Section 8 (a)(1) of the NLRA. The court concluded the posts were protected because they “disclosed the ongoing labor dispute over income tax withholding” rather than simply disparaging the reputation of the business. The Second Circuit dismissed the business’s argument that it should strip the employees’ Facebook activity of protection because it contained obscenities that were viewed by customers. The Second Circuit cautioned such rationale “could lead to the undesirable result of chilling virtually all employee speech online.” The Court’s decision that the Facebook activity did not lose the protection of the NLRA because it contained obscenities suggests the Court recognized how more “speech” occurs on social media than at face-to-face meetings.

The court also concluded that the business’s Internet/Blogging policy was too broad because “employees would reasonably interpret [it] as proscribing any discussions about their terms and conditions of employed deemed ‘inappropriate.”

The Second Circuit issued a summary order, which has no precedential effect. Regardless, employers should “takeaway” the following lessons:

1. The NLRB and Courts will likely continue to aggressively protect employees’ speech on social media.
2. While this case addressed Facebook “likes”, the rule would likely apply to other social media, including Instagram, Twitter, Tumblr, Vine and YouTube.
3. Employers should consult an attorney to review and revise their social media policies and/or handbooks to insure they don’t include protected activity. Employers who do not have handbooks or social media policies should create those policies.
4. Employers should always consult with an attorney before firing an employee for a social media activity.