By Stan Hill
Employees “friend” each other on Facebook and “like” each other’s posts. Recently, the Second Circuit issued a ruling in Three D, LLC v. NLRB, No. 14-3284 (Oct. 21, 2015) addressing a few issues that employers should consider when faced with employee Facebook posts, “likes,” and replies.
How do the courts balance an employee’s Section 7 rights with an employer’s interest in preventing disparagement of its products or services and protecting the reputation of its business? As discussed below, the existing “balance” is a minefield presenting several pitfalls for employers.
Pitfall #1: The Profane Facebook Post
In Three D, LLC v. NLRB, No. 14-3284 (Oct. 21, 2015), the Second Circuit Court of Appeals held that both an employee’s vulgar Facebook post deriding an employer’s purportedly erroneous calculation of the employee’s tax withholding and “likes” of another post on that topic were protected concerted activity. As a result, the participating employees were unlawfully terminated for making the protected posts and “likes.”
A profane Facebook post, according to the panel in Three D, does not sufficiently implicate the “legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers” to forfeit the post’s protected status, even where customers in fact saw the profane Facebook post. This judicially imposed, location-dependent double standard of employee decorum is not intuitive, and presents a pitfall for employers.
Pitfall #2: Ignorant “Likes” of Defamatory Posts
An employee’s Facebook post is defamatory if made maliciously, meaning with knowledge of its falsity, or with reckless disregard of whether it was true or false. Importantly, the falsity of a Facebook post or “like,” alone, is not enough for a Facebook post to lose its protected activity status. Where an employee relays in good faith what he or she has been told by another employee, reasonably believing the report to be true, the fact that the report may have been inaccurate does not remove the relayed remark from the protection.
Because each employee’s knowledge must be assessed for purposes of defamation, an ignorant employee’s “like” of a defamatory Facebook post may nevertheless be protected activity. Employers rarely will be able to fully assess employees’ knowledge when considering whether to take adverse action against employees for Facebook activities.
Pitfall #3: No “Labor Dispute,” No Problem
The Triple D opinion also stated that, “communications may be sufficiently disloyal to lose the protection of the Act if they amount to criticisms disconnected from any ongoing labor dispute.” This statement, however, should not be read broadly, because Section 7 protected activity is not limited to criticisms of an employer connected with ongoing labor disputes, and is not limited to unionized workplaces. Rather, any communication intended to reach co-workers or made on behalf of more than one employee (i.e., not merely a personal gripe) that concerns any term or condition of employment is likely Section 7 protected activity.
Consider the “Frozen” Approach, and “Let It Go”
Against the backdrop of expanding and fact-dependent employee protections on social media, employers should consider taking no action in response to unfavorable employee Facebook posts, except in egregious situations, such as blatant defamation and misappropriation or disclosure of confidential information or trade secrets. Disciplining an employee for potentially protected Facebook posts or likes not only risks Section 7 liability, but also risks that other employees or the public will take notice of the posts.
Employers should also consider implementing social media policies to create a culture where employees are encouraged and enabled to bring concerns directly to the employer for private resolution, rather than airing them in a public and permanent forum such as Facebook. Such policies must be carefully drafted, to avoid language that reasonably chills the exercise of Section 7 rights. Navigating the pitfalls of employee social media is an important task for any employer.