Section 7 of the National Labor Relations Act says employers can't prohibit employees from talking about unions, working conditions, or pay. Section 8 prevents employers from punishing employees for these activities.
Employees of Triple Play Sports Bar and Grille in Watertown, Connecticut, took to Facebook to complain that Triple Play's co-owner and accountant, Ralph DelBuono, incorrectly calculated the employees' state tax withholding, and as a result, they owed the state money. Two days later, all the employees who participated in the conversation were fired.
In a decision from the National Labor Relations Board, two panel members found that employees were engaging in protected activities and were wrongly terminated in violation of the Act.
Because the employees were discussing issues they wanted to bring up at a staff meeting, as well as their options for involving government agencies, the NLRB found that they were engaged in protected speech activity. It further found that one employee's use of the "Like" button to approve of another employee's post constituted protected speech activity. Consequently, their actions were protected and their termination, which was explicitly the result of the Facebook conversation, broke the law.
Triple Play has a communication policy that purports to allow it to fire employees who communicate confidential information or engage in "inappropriate discussions about the company." The NLRB also found that the policy violates Section 8.
Don't Keep Unlawful Policies Lying Around
One member of the panel dissented, saying that the policy on its face didn't violate Section 8. But that's not really the point: the point is where employees "would reasonably interpret it to prohibit protected activities." The purpose of Section 8 is not merely to forbid policies that explicitly sanction protected speech ex post, but also to forbid policies that may have a chilling effect on protected speech.
A company simply can't maintain overly broad policies on employee communication. As we learned from the Mercedes-Benz decision last month, it doesn't matter if such a policy is enforced or not. If an overly restrictive policy is on the books, then an employee could reasonably believe that he or she would be punished for protected activity and therefore not engage in that activity to begin with. That's the very definition of a chilling effect and exactly what the National Labor Relations Act is there to prevent.
Get Management Under Control
Management also has to be trained in how to respond appropriately. In this situation, DelBuono had a lawyer send scary letters threatening actions for defamation against some of the participants in the Facebook conversation. Threatening a lawsuit in a situation like this is, of course, not going to remedy the problem and will serve only to escalate it. Rather than react viscerally, management needs to be instructed that they should take a little time out before responding and contact in-house counsel, who hopefully will behave more rationally.
- Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation (The Volokh Conspiracy)
- Even if It Enrages Your Boss, Social Net Speech Is Protected (The New York Times)
- Target Targeted by NLRB for 'Non-Solicitation' Policy (FindLaw's In House)
- NLRB Invalidates Costco's Social Media Policy (FindLaw's In House)