NLRB Still Focusing on Unlawful Facebook Firings

While talk may have quieted down about the National Labor Relations Board’s reach into the non-union setting and employee social media activity, don’t get lulled into a sense of complacency. The NLRB is still very active in this area. The NLRB continues to take action against employers for disciplining workers who post negative comments about supervisors or the company on personal social media pages, such as Facebook.

Employer policies or actions that interfere with the rights of employees to discuss wages and working conditions with co-workers can be unlawful under the National Labor Relations Act (NLRA), regardless of whether you have a unionized or non-unionized workplace.

Take for example, Triple Play Sports Bar, 361 NLRB No. 31, a decision involving a non-unionized bar and restaurant. The NLRB held that an employer’s discharge of two employees for their online Facebook discussion about a tax withholding issue was unlawful under the NLRA. The matter started when a former employee posted the following to her Facebook page:

“Maybe 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!!!!”

This post elicited responses from some employees including, Jillian Sanzone and Vincent Spinella.  Sanzone commented that she owed also and called the owner a derogatory name. Spinella did not post a comment but selected the “Like” button for the original post. Sanzone was told that she was being discharged for her Facebook comment and Spinella was told that he was being discharged because his “Like” meant the he supported the “disparaging and defamatory” comments made in the Facebook thread.

The NLRB found that the Facebook discussion was protected because it related to “workplace complaints about tax liabilities” and also was concerted activity because it involved several current employees and was part of ongoing discussions that started in the workplace.

The case illustrates the NLRB’s continued overreach …

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