Author: Brynn Stylinski, Contributing Member, University of Cincinnati Law Review
In today’s world of social media, employee interactions regarding their employers are becoming increasingly more public. Conversations that previously would have taken place in a private home or around the water cooler now take place online and may take many different shapes. Instead of a simple exchange of words, an interaction regarding one’s employer might include a re-tweet, a “like,” or a share. This poses a problem for those who must evaluate whether such activity is protected under the terms of the National Labor Relations Act (NLRA), written decades before the personal computer came into existence. The Second Circuit recently addressed this problem when it upheld the ruling of the National Labor Relations Board (“NLRB”). The Circuit agreed with the NLRB that a “like” and other comments on a Facebook post could be considered protected “concerted activity” under the NLRA and that such an interaction, though accessible by customers and potentially based on incorrect information, was not excluded from the protection of the act.[1] This decision was appropriate and paves the way for future courts to better adapt to the increasingly public nature of private conversation.
Three D LLC’s History
In January of 2011, a former employee of Triple Play Sports Bar, owned by the defendant corporation, posted a Facebook status update about Triple Play. The status stated that “someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money… Wtf!!!!”[2] This status received several comments from employees and customers and it was liked by another employee. The employees’ comments discussed owing money on taxes and their belief that a supervisor had done paperwork incorrectly, causing them to owe extra taxes.[3] The comments on their employer were negative and multiple customers were involved in the conversation. They discussed the situation and referred to the fact that they would be discussing the problem in a later meeting.[4] The employee who liked the post and the employee who had commented on it were both discharged for their conduct.[5] The NLRB found that this Facebook activity—including the like—amongst past and present employees and non-employees, in the context of a disclosed ongoing labor dispute constituted protected concerted activity under the NLRA. Therefore, the discharge of employees for participation constituted a violation of the act under Section 8(a)(1).[6]
Concerted Activity Under the NLRA
The NLRA provides protection to certain types of employee activities which would otherwise be permissible grounds for termination under the rule of at will employment. Section 7 of the act provides employees with the right to form labor organizations, bargain collectively, and “engage in other concerted activities for… mutual aid or protection[.]”[7] It is an unfair labor practice and a violation of the NLRA for an employer to “interfere with, restrain, or coerce employees in the exercise” of these rights.[8] The term “concerted activities” is not defined under the act, and courts have found that the employees’ interests in protecting concerted activity must be balanced against the interests of employers in preventing the disparagement of the company through statements calculated to “harm the company’s reputation and reduce its income.”[9] A public attack on the quality of an employer’s products or business loses the protection of the NLRA.[10] However, an employee participation in a private conversation—despite involving third parties and the presence of unprotected statements—will not lose the protection of the NLRA when their own statements are not maliciously untrue and are made strictly for the purpose of mutual support in group action.[11]
Facebook Activity as Protected Concerted Activity in Three D, LLC v. N.L.R.B.
The Second Circuit upheld the NLRB’s finding that the Facebook activity engaged in by the employees of Triple Play was concerted activity —which is protected under the NLRA—and that the consequent discharge was a violation of Section 8(a)(1) of the act.[12] The Circuit, like the Administrative Law Judge in the initial hearing, relied on the standard for concerted activity established in Meyers Industries.[13]
The standard in Meyers Industries establishes that concerted activity exists if a discussion “was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees.[14] In this case, the employee discussion related directly to ongoing workplace discussions of the tax withholding issues.[15] The court rightfully agreed with the board that the employees’ Facebook like and comment endorsing the initial status update over “workplace complaints about tax liabilities, [Triple Play’s] tax withholding calculations, and [a former employee’s] contention that she was owed back wages” were concerted activities.[16]
The court also rightfully rejected Triple Play’s contention that the employees’ were unprotected because they involved obscenities in the presence of customers or because the comments were defamatory.[17] It found that although an employer has an interest in preventing outbursts in the presence of customers, the issue at play was that of preventing the disparagement of an employer, and the discharged employees did not engage in any malicious disparagement. They simply sought to provide “mutual support looking toward group action” in light of the “clearly disclosed” ongoing labor dispute over tax withholding.[18] As the court concluded, a finding that Facebook activity was unprotected simply because it related to an employer, contained obscenities, or could be seen by customers would have an “undesirable result of chilling virtually all employee speech online.”[19]
The Potential Effect of Three D, LLC
Many of the laws written to protect workers and other individuals from retaliation do not address situations like those which arose in Three D, LLC because the drafters could not have contemplated the existence of modern social media platforms. Today, many interactions that were previously held over the phone or in person now play out over social media in a semi-public or completely public manner. Many of these statutes are written broadly enough that most social media interactions could fall within that protection if the courts were to interpret them so. The Second Circuit’s decision is important because it sets a precedent for extending worker protections into these new forums instead of letting them diminish in the face of the changing nature of social interaction.
As more and more interactions that previously took place in private conversations move to the public arena of social media—and the types of communication become less explicit—it would be all too easy for the spirit of the laws to become lost as the letter of them fails to adapt. The decision to treat the Facebook “like” button as a protected communication of endorsement in an ongoing employment dispute is especially key to furthering the NLRA’s protections. It goes towards the plethora of non-verbal communication in media today and recognizes that such communication can have just as great an impact as the spoken word. A like, share, or re-tweet can speak volumes without ever saying anything personally. Although the opinion is not published and therefore not binding precedent, it could signal a key turning point in the law.[20] The facts and circumstances of each case will be the determining factor for whether Facebook or other online activity is considered concerted activity under the law, but this decision may indicate a willingness on the part of the courts to adapt the protections of the act in the face of an increasingly less unionized and more social media savvy workforce.
Conclusion
If the courts continue to display this willingness to adapt to the changing times, it will mean continued protection for workers. Instead of watching the protections slowly deteriorate, workers will instead be able to assert them in new ways. This decision may set the courts on the path to continued protection instead of steady erosion of rights. It signals an important decision at a key fork in the road.
[1] Three D, LLC v. N.L.R.B., No. 14-3284, 2015 WL 6161477 (2d Cir. Oct. 21, 2015).
[2] Three D, LLC, 361 NLRB No. 31 at *2 (Aug. 22, 2014).
[3] Id.
[4] Id.
[5] Id. at *1, 3.
[6] Id. at *6-8.
[7] 29 U.S.C. §157.
[8] 29 U.S.C. §158(a)(1).
[9] 29 U.S.C. §157; Valley Hosp. Med. Ctr., Inc., 351 NLRB 1250, 1252-3 (2007)(internal citations omitted).
[10] N.L.R.B. v. Local Union No. 1229, Int’l Bhd. of Elec. Workers, 346 U.S. 464, 475-6, (1953)(Upholding the NLRB’s ruling in Jefferson Standard, 94 NLRB 1507 (1951)).
[11] Three D, LLC, 361 NLRB No. 31 at *6-7 (citing MasTec Advanced Technologies, 357 NLRB No. 17, slip op. at 5 (2011), Valley Hospital, 351 NLRB at 1252 fn. 7, and Linn v. Plant Guards Local 114, 383 U.S. 53, 64-5 (1966)).
[12] Three D, LLC, 2015 WL 6161477 at *3-4.
[13] Three D, LLC, 2015 WL 6161477 at *2 (citing Meyers Industries, 281 NLRB 882, 887 (1986) enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C.Cir.1987)).
[14] Meyers Indus., 281 NLRB at 887.
[15] Three D, LLC, 2015 WL 6161477 at *2.
[16] Id. at *2 (First alteration in original).
[17] Id. at *2-4.
[18] Id. at *3-4
[19] Id. at *3
[20] By Melissa J. Sachs, Tavern Can’t Fire Workers over Facebook “Likes,’ Appeals Court Affirms, 30 Westlaw Journal Employment 8 at *1 (2015).
