Beware What Constitutes Concerted Activity

You may not “Like” this much, but the warning shot from a recent ruling broadening the definition of protected concerted activity is 179693002 -- Likestill reverberating and worth keeping front of mind as you go about your 2016 planning when it comes to social-media approaches and policies.

In the ruling, the Second Circuit Court of Appeals — covering Connecticut, New York and Vermont — upheld the National Labor Relations Board’s finding that two employees at the Triple Play Sports Bar and Grille in Watertown, Conn., were wrongfully terminated after one posted on Facebook, and the other “liked,” a disparaging criticism of the company’s income-tax-withholding policies.

An NLRB judge found, and the Second Circuit agreed, that both activities were protected and concerted under Section 7 of the National Labor Relations Act  because they involved multiple employees and were related to workplace complaints.

“It didn’t matter that there was no union to be found on the premises,” Carmon Harvey, a shareholder in national law firm LeClairRyan’s Philadelphia office, writes in a blog post at EPLI Risk.

“It also didn’t matter that customers could see the public employer-bashing,” she writes, “because the content wasn’t directed at customers, was not defamatory and did not tend to disparage the employer’s brand, products or services. This meant that their subsequent terminations were a big NLRA ‘no-no.’ ”

To top it off, the court also affirmed the NLRB’s ruling that the employer’s expansive Internet and social-media policy went too far, unlawfully prohibiting activity protected under the NLRA.

Brian Hall, writing on the Employer Law Report, highlights two interesting points about the case: that the comment and “Like” were protected because they both related to ongoing employee concerns over their employer’s workplace-tax withholding and their resulting tax liabilities, and that the Facebook communications “were not so disloyal or defamatory as to lose the protection of the Act.”

“Specifically,” he writes, “the court found that the employees did not disparage the employer’s products or services and their communications were not ‘maliciously untrue.’ ” He continues:

“The court was not swayed by any profanity contained in the one employee’s comment because it was not made in the presence of or directed at customers and did not reflect the employer’s brand. According to the court, accepting Triple Play’s argument that the Facebook discussion took place ‘in the presence of customers’ could lead to the undesirable result of chilling virtually all employee speech online. [As the ruling states,] ‘almost all Facebook posts by employees have at least some potential to be viewed by customers.’ “

As a result, the court upheld the board’s order requiring the employer to offer reinstatement and full back pay to the terminated employees. It also, as mentioned above, called into question the company’s social-media policy, which states that:

“[W]hen internet blogging, chat-room discussions … or other forms of communication extend to employees … [by] engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.”

So what are the takeaways for employers and HR? Hall says they’re twofold:

“To help avoid liability, employers should:

  • Have their social-media policies reviewed by experienced counsel to eliminate provisions that can be reasonably misconstrued to restrict employees from discussing the terms and conditions of their employment with others; and
  • Understand, before disciplining employees for any communication or activity on social media, that otherwise protected communications or activities will not lose their protection under the NLRA simply because they disparage or are uncomplimentary [to] the employer, [and] contain statements that are not true, or contain profanity.”

Is it just me or has social media made it exponentially harder for employers to protect their reputations and brands? Even if you can’t comment on an employee’s disparaging private Facebook discussion, you’d better start arming yourself with strategies for getting your good word out online, as this recent HRE feature by Staff Writer Mark McGraw explores.