In the Three D, LLC d/b/a Triple Play Sports Bar and Grille decision issued on August 22, the National Labor Relations Board (NLRB) ruled against a non-union restaurant based on management terminating employees as the result of the employees’ Facebook postings. The decision illustrates why both unionized and non-union employers need to be aware of the Board’s positions on employee use of social media.
Employee use of social media has become a hot button enforcement issue for the NLRB. The basis for the NLRB aggressively pursuing the issue is the Board’s position that social media postings may constitute “concerted activity” protected by the National Labor Relations Act (NLRA). The NLRA may apply regardless of whether the employer is union or non-union, and the Board enforces the Act based on its interpretations of the Act’s provisions.
In Three D, LLC, the non-union restaurant made a payroll mistake resulting in employees owing more in taxes than expected. Unhappy employees posted comments to Facebook regarding the situation, and the employer responded by terminating employees who had posted. The employer also interrogated one of the employees prior to termination, and threatened legal action based on the employee’s online comments. The Board found these actions violated the NLRA’s protections for employees discussing their terms and conditions of employment including wages paid or owed. Based on the violations, the Board ordered that the employees be reinstated and receive back pay, lost benefits, and removal of the discharge records from the employee personnel files. As the employer based its decisions in part on the employer’s internal policies, the Board also ordered that the organization revise its policies and distribute the revised versions to workers.
There are several considerations for management following this decision:
1. Be aware that regardless of union presence, the Board may have jurisdiction over an employer. The Board has been more aggressive in recent years in pursuing potential violations of the NLRA against non-union employers. Employers need to know that simply lacking a union presence will not protect them against Board enforcement action if they are not acting in compliance with the NLRA.
2. Be cautious when considering disciplining employees based on social media use. Social media use and related policies have become hot topics for the NLRB. Under the NLRA, employees are entitled to discuss terms and conditions of employment with other workers. Employers need to be careful before taking action. For example, a negative posting on hours or wages by one employee which is responded to by other employees may be protected as multiple workers are discussing protected issues making the discussions potentially protected “concerted activity.” A negative posting by one worker that does not generate any responses or discussion may instead be considered “griping” and not protected under the NLRA. Each situation will have to be assessed on its particular facts.
3. Check and possibly re-write organization social media and communication policies. The Board has been increasingly aggressive over the last several years in scrutinizing both union and non-union employer social media and communication policies and practices. Three D, LLC is the latest decision in this recent string. Many organizations have policies written before the Board began pursuing the social media issue. These policies may not be in compliance with current Board interpretations of the NLRA and what employees are allowed to post or discuss online. Employers should double-check to make sure that practices and policies are consistent with what is permissible under the Act as the Board interprets it.
Patrick Pearce is a member (equivalent to partner) at Ogden Murphy Wallace, PLLC, and practices with the firm’s Employment and Labor and Hospitality groups. He is available at 206-447-7000 or ppearce@omwlaw.com to address questions on this or other employment and labor law issues.
