In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. (August 22, 2014), the National Labor Relations Board ruled that an employee “liking” a status on Facebook is engaging in protected concerted activities under the NLRA.   Employees were unlawfully terminated for ranting about the employer’s tax-withholding error, which resulted in the employees owing an unexpected sum of money to the state tax authorities.

Getting to First: Facebook “Like” as Protected Concerted Activity

In a heated discussion on Facebook, an employee “liked” another employee’s post, which included: “They [the employer] can’t even do the tax paperwork correctly!!!! Now I OWE money… Wtf!!!!”  While the NLRB determined that the “like” constituted concerted conduct with the original poster, the Board also held that the “like” expressed agreement only with that particular post.  If an employee agrees with the subsequent commentary, s/he would have to “like” them individually.  The practical implication of this appears to be that unless an employee “likes” a specific post that was work related, it could not in the ordinary case constitute evidence of concerted conduct for purposes of the NLRA.  Here, however, the post which was “liked” involved the employer’s purported handling of tax paperwork issues, and was thus a protected form of employee communication seeking mutual support to improve their terms and conditions of employment.

What’s on Second?  Atlantic Steel v. Jefferson Standard

The Board considered whether the employee’s speech lost protection either under Atlantic Steel Co., 245 NLRB 814 (1979), or under the standards established in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).  Declining to follow the ALJ’s approach of applying Atlantic Steel, the Board noted that where issues arise out of off-duty, off-site social media use to communicate with other employees or third parties, Atlantic Steel is inapplicable because the standard announced in that case is “tailored to workplace confrontations with the employer.”  Here, because the underlying communications were outside the workplace, and were not directly with the employer, the Board applied Jefferson Standard to determine whether the employees’ speech was so disloyal, reckless or maliciously untrue as to lose protection under the Act.  The Board distinguished the facts here from the disparaging facts in Jefferson Standard, finding that the Facebook discussion disclosed the existence of an ongoing employment related dispute; that the communications were not directed to the general public because they were posted on an individual’s personal page; and that the comments did not disparage the employer’s products or services.  For those reasons, the employees speech did not lose the protection of the Act.

A Knuckle Ball: The Vagueness of “Inappropriate”

The NLRB reversed the ALJ’s decision to dismiss an alleged violation for the employer’s maintenance of an Internet/Blogging Policy.  Instead, the Board found that the policy violated the law.

The policy stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or 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. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company.

As the policy was lacking in illustrative examples, the majority found that the policy’s language forbidding “inappropriate” communications in the Internet/Blogging Policy was “sufficiently imprecise” as to be overly broad.

Member Miscimarra, dissenting in part, argued that the term “inappropriate,” albeit “susceptible to different meanings,” was in fact “using an understandable catchall phrase as a general statement of policy.” In the dissent’s view, the policy only deemed discussions “inappropriate” if they violate the law.

Three Up, Three Down! The Savings Clause that Couldn’t

In light of two discharges related to protected concerted activity, the NLRB found a savings clause in the Internet/Blogging policy was “ineffective.”  The savings clause stated that: “In the event state or federal law precludes this policy, then it is of no force or effect.”  Even though the policy was to have “no effect,” the NLRB still found that the Internet/Blogging Policy would be viewed by employees through the lens of the termination of two employees for engaging in protected concerted activity.

Switch Hitter: A Lone Dissent

The dissent criticized the majority’s decision as the sort of analysis which “contributes to the uncertainty employers confront in seeking to square their rules,” which now “consists of so many distinctions, qualifications, and factual variations as to preclude any reasonable ‘certainty beforehand’ for most parties ‘as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.’”  We have previously noted the dissent’s point concerning the difficulty of employer compliance where the state of the law is unclear here, here and here.

Reading the Signs

The ruling in Triple Play Sports Bar illustrates the NLRB’s further reach into social media policies and work rules.  An otherwise insignificant “like” can offer an employee protection under the Act, even in a non-union context, such as here.  Further, the decision deals a blow to employer efforts to utilize a ”savings clause” which plainly stated that the policy would have “no effect or force” in the face of countervailing federal law.  Employers are still searching for a savings clause that will find Board approval.  It is likely that if a savings clause ever is approved by the Board, it will have to be a simply worded one, not written only for lawyers but also to be easily understood by workers.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.