Facebook postings of employer

November, 2015

My employer fired me for criticizing the company on Facebook. Do I have a case?

It is probably not known by many non-union employers that their employees have rights under a federal statute that is more known as governing collective bargaining rights between a union and a labor-organized employer in the private sector: the National Labor Relations Act, (“Act”).

Increasingly, the National Labor Relations Board, (“NLRB”), has found that non-union employers have violated the Act by discharging employees that criticize their employer about terms and conditions of their employment. A recent case by the Second Circuit Court of Appeals continues this trend, Triple Play Sports Bar & Grill v. National Labor Relations Board, 2015 U.S. App. LEXIS 18493, Oct. 21, 2015.

In this case, the employer, Triple Play Sports Bar, fired two employees after they posted the following criticisms on Facebook concerning the company’s erroneous tax withholdings from their paychecks, compelling the employees to pay more:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money …Wtf!!!” In response, another employee posted the following: “I owe too. Such an asshole.”

In order to receive the protection of the Act, the disputed conduct must be “protected, concerted activity.”

However, such employee rights must be balanced against an employer’s interest in “preventing disparagement of his or her products or services and protecting the reputation of his or her business.” See, Valley Hosp. Med. Ctr., Inc., 351 NLRB 1250, 1252-53 (2007). An employee’s communications with the public may lose the Act’s protection if they are “sufficiently disloyal or defamatory.”

An employee’s public statement is defamatory if it is made maliciously, meaning “with knowledge of its falsity or with reckless disregard of whether it was true or false.

Key to this analysis is whether such communications are disconnected from any ongoing labor or employment dispute.

The Second Circuit found that Triple Play violated the act in discharging the two employees since the conduct concerned protected concerted activity. As to the remaining question whether the Facebook comments were so disloyal or defamatory to be unprotected, the Court found the following:

1. The comments did not mention Triple Play’s products or services, much less disparage them;
2. The obscenities were not outbursts in the presence of customers, were not directed towards customers and did not reflect the employer’s brand;
3. The Facebook discussion reflected an ongoing dispute at the workplace over income tax withholdings.

The Court held that Triple Play violated the Act by (1) threatening employees for
their Facebook activity; (2) interrogating employees about their Facebook activity; (3) informing employees that they were being discharged for their Facebook activity.

Like job descriptions, employee handbooks are not reviewed on a regular basis to ascertain whether they conform with changing employment laws. As such, they may provide fertile grounds for employee claims under the National Labor Relations Act.

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