Even Those Who "Like" On Facebook Are A Protected Class

We advise clients that they are free to terminate the employment relationship with a worker unless the action either breaches a contract or violates public policy.  A public policy violation often takes the form of discrimination based on race, age, disability or other class protected by Title VII or FEHA.  However, public policy violations are also found where an employer fires a worker for another reason – such as engaging in a concerted activity. 

 

Employees engaging in concerted activities are protected by the National Labor Relations Act (“Act”).  This means that employees are working together with respect to an issue related to the workplace.  Interference with concerted activities, or discrimination because of concerted activities, is a violation of the Act, whether or not the workplace is unionized. 

 

The Triple Play Bar & Grill discovered recently that an employee’s decision to “like” a Facebook discussion constituted concerted activity protected by the Act.  One employee complained that because of the restaurant’s failure to handle tax withholdings properly, she was required to pay taxes when filing her return.  Other employees echoed this refrain, using vulgar terms.  One employee, did nothing more than “liked” the Facebook conversation. 

 

The restaurant was not pleased with the comments.  It considered the comments to be disloyal and defamatory.  It confronted employees and informed them that they obviously would enjoy working somewhere else.  That’s where the NLRB stepped in.    

 

No one contested that the employees had engaged in protected activity.  The issue was whether the Facebook comments lost protection under the Act because they were disloyal or defamatory.  In this case, the Board concluded that the comments did not lose protection because they were related to an ongoing labor dispute regarding tax withholdings, and because the comments were not directed to the public, but were on a private Facebook page.  Nor were the comments so disloyal to lose protection.  They were intended to create mutual support among employees, and not to disparage a product or service, or to undermine the restaurant’s reputation. 

 

The Board also concluded that a company policy prohibiting “inappropriate discussions about the company” to be overly broad and could reasonably be interpreted to encompass protected activity. 

 

So what is an employer to do?  First, handbooks must be scrutinized for provisions that might impinge upon employees’ rights to engage in concerted activities.  Second, before taking action to discipline or fire a worker, an employer must examine whether its actions are the result of protected concerted activities.  Even a “like” on Facebook is protected.  The comments made must be sufficiently disloyal or disparage the services or products of the company before termination is warranted. 

 

An Old Ambulance, Facebook Posts & Two Fired Employees -- A Recipe For NLRB Intervention

Chelsea Zalewski, an EMT with Butler Medical Transport, complained to a patient about the alleged poor condition of the company's ambulances.  The company responded by firing Chelsea.  

Chelsea posted about her termination on Facebook.  William Norvell, another EMT with the company, responded by advising her to seek the assistance of a lawyer or the labor board and taking the company to court.  The company responded by firing William. 

An Administrative Law Judge (ALJ) concluded that the company's decision to fire William was an unfair labor practice.  The ALJ determined that the condition of company vehicles was a common concern among company employees.  Therefore, the Facebook postings between William, a current employee, and Chelsea, a former employee, constituted "concerted activity" protected by the National Labor Relations Act (NLRA). 

In ruling, the ALJ rejected the company's claim that William's posting was available to the public and discredited the company.  The ALJ concluded that the effect on the company's business from William's email is not a viable defense.  Moreover, the ALJ ruled that the company's policy that prohibited employees from using social networking sites that could discredit the company was unlawfully overbroad. 

In contrast, the ALJ upheld the firing of another EMT, Michael Rice, over his Facebook posting.  In crude language, he suggested that a company vehicle he was driving broke down again due to poor maintenance practices.  Michael refused to testify at the NLRB hearing, invoking his 5th Amendment privilege.  But at a subsequent unemployment hearing, Michael informed the judge that he was referring to his own vehicle and not the company's vehicle. 

The ALJ concluded that Michael's posting was not protected.  Rather, it was malicious and false.  As a result, the company was within its rights to terminate Michael's employment. 

What does this suggest to employers?  First, you must carefully craft your policies to comply with the terms of the NLRA.  Second, you must carefully evaluate employee comments, whether verbal or in writing, to determine whether the communciations constitute concerted activity.  And as this ALJ recognized, the fact that the communications may have an adverse effect on business does not justify an employer taking adverse action against an employee for engaging in protected, concerted activities.