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Federal Appeals Court “Likes” Employees That Don’t “Like” Their Employer


Posted on October 22, 2015

On Wednesday, the U.S. Court of Appeals for the Second Circuit upheld a decision from the National Labor Relations Board (“NLRB”) that a restaurant violated federal labor law when it fired two employees who “liked” and participated in a Facebook conversation started by another disgruntled former employee who accused the employer of stealing wages through improper tax withholding, and, in the case of one of the fired employees, referred to the owner as an “asshole.” In Three D, LLC v. N.L.R.B., Case No. 14-3814, the Second Circuit Court determined that the non-union restaurant was not within its rights to discharge these two employees for obviously disloyal and disparaging conduct. It would never occur to most American employers that they could be taken to federal court – and lose – for firing an employee after calling the employer an “a-hole,” but now we know better.

The problem started when a former employee of Three D, LLC, owner of the Triple Play Sports Bar and Grille (“Triple Play”), found out she owed the state more income tax than was withheld from her paycheck. The former employee blamed Triple Play, and posted a Facebook rant. Two former co-worker “friends” who were still employed by Triple Play, chimed in. One of the two employees “liked” a comment blaming the employer for not withholding enough, and the other called one of the owners an “a-hole.” There was no evidence the employer actually made a mistake in the withholding; in fact, one of the employees testified she had no reason to believe the employer had made any mistake in her withholding at all. The employer reasoned that, if these two employees held these opinions of their jobs, perhaps they should work elsewhere – hastening that process by discharging them. The employees promptly filed an unfair labor practice with the NLRB.

The NLRB ruled that Facebook conversations among employees are considered “concerted activity” that is protected under federal labor law. Since the 1930’s, federal law has protected employees from adverse employment action when they act in concert for their mutual aid or protection. In other words, federal law permits employees to gang up on their employer. Most people think these laws only govern union situations, but they actually apply to any employer engaged in interstate commerce (with some exceptions). The NLRB found that, because the Facebook rant concerned working conditions, and since the employer could not prove the employees actually knew the statements they “liked” were false, the employer could not legally fire them. Instead, the NLRB said the employees had a federally-protected right to use social media to disparage their employer, so long as the statements related to working conditions.

An employer is permitted to fire any employee who engages in disloyal conduct – including on social media – but the line between “disloyal” and “too disloyal to remain employed” isn’t clear. The Second Circuit Court found that the “asshole” remark and the “like” were protected activity because they were not too disloyal or defamatory. Frankly, it’s hard to imagine a more disloyal act than calling one of the company owners an “asshole,” in a comment immediately after someone else referred to him as “shady,” but that’s clearly not enough. The Second Circuit Court said to lose federal protection, the comments must relate to an employer’s goods or services, and since these comments only disparaged the owner’s character, they remained protected.

For its decision, Triple Play had to offer both employees their jobs back, pay back wages for the time spent without a job, pay any extra tax liability the employees incurred from the back pay award, and post a notice of the decision in the work place, among other things. For an employer, the take away from this decision is probably just to grow a thicker skin, and focus personnel decisions on actual job performance, rather than social media rants. The NLRB is going to side with employees most of the time in disputes like this, so an employer really must be careful before firing someone over a social media post or the fact that they “liked” someone else’s distasteful or untrue remark. The Second Circuit Court said that, if an employee disparages his/her employer’s goods and services (versus the working conditions), then the employer might still have legitimate grounds to fire – but such instances require careful evaluation to determine whether they can form the basis for a lawful termination or disciplinary action.

Unfortunately, the Second Circuit Court also ruled that Triple Play’s policy prohibiting “inappropriate discussions about the company, management, and/or co-workers,” on social media also violated federal law. Most employers include a social media policy nowadays as part of their handbooks, which are usually intended to keep co-workers from sniping each other on social media, posting private company information without consent, or embarrassing themselves or the company they work for with unprofessional or undignified posts. The Second Circuit Court said that, since the policy did not define what “inappropriate discussions” meant, it went too far and sent the message to employees that they couldn’t talk about their working conditions on social media, especially after watching two of their co-workers get fired after jumping on the band wagon. The NLRB was concerned the policy would discourage employees from acting in concert for their mutual aid against the employer, and therefore federal law had to step in and ratchet this back. The Second Circuit Court’s order required Triple Play to rescind its policy completely, and post a notice that it would no longer enforce the prohibition on “inappropriate discussions.”

This aspect of the ruling leaves most employers now trying to figure exactly how to enforce professional standards when it comes to their employees. We all hear about cyber-bullying, and there is no question it occurs on social media between co-workers who don’t like each other. So when does an employee’s critical name-calling of co-workers or supervisors on Facebook cross the line from federally protected “concerted activity” to “just cause” for firing? No one really knows. This blog has previously discussed how, if executive branch administrative agencies really wanted to help employers comply with the law, they would offer clear rules that we could follow. Perhaps they do this on purpose so there is always something that can be argued, and maybe that’s the point. If you have questions regarding this decision or any other aspect of Ohio labor law, please contact Todd Harpst or Nick Horrigan, at Harpst Ross, Ltd. – Business Lawyers for the Construction Industry®, at (330) 983-9971 or tharpst@harpstross.com or nhorrigan@harpstross.com.

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