By: C. Scott Schwefel
On October 21, 2015, the Second Circuit Court of Appeals, which encompasses the states of Connecticut, New York and Vermont, affirmed a decision by the National Labor Relations Board (“NLRB”) finding that an employee’s “liking” another employee’s disparaging comments, directed at their employer, is protected under the National Labor Relations Act (the “Act”). Sections 7 and 8 of the Act protects employees engaging in “protected, concerted activities” from employer retaliation and such protections apply to non-unionized employees.
In defining “protected, concerted activity” the NLRB summarizes:
“Activity is ‘concerted’ if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is ‘protected’ if it concerns employees’ interests as employees.”
In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board (14-3284(L)), the employer, Triple Play Sports Bar and Grille, terminated two employees after the first employee criticized the business owners on Facebook because its management failed to properly administer payroll tax withholdings and a second employee “liked” the posting. Because the Facebook comments involved several employees and were part of ongoing discussions in the workplace regarding the calculation of the employees’ tax withholding, the Second Circuit agreed with the NLRB that the online activity was a work-related discussion protected by the Act and, thus, the terminations were illegal.
The Court noted, “The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the second employee’s] “like” or [the first employee’s] statement could evaluate the message critically in light of that dispute.”
If you have any questions regarding your company’s social media policies or practices please contact Scott Schwefel at (860) 606-1712. You may also contact the Shipman Shaiken & Schwefel, LLC attorney with whom you usually work to discuss a comprehensive approach for complying with state and federal laws and regulations governing your workplace.