Academic journal article Labor Law Journal

Words Mean Everything: The National Labor Relations Act and Employer Social Media Policies

Academic journal article Labor Law Journal

Words Mean Everything: The National Labor Relations Act and Employer Social Media Policies

Article excerpt

When she learned that she owed more in state income taxes than she expected, Sanzone, a waitress at the Triple Play Sports Bar and Grille, mad. After she told co-workers, several complained to the owners, DelBuono and Daddona, who arranged a meeting with their payroll provider. Meanwhile, LaFrance, who no longer worked there but also owed money, posted this update on Facebook: "Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paper work correctly!!! Now I OWE money . . . Wtf!!!" Her "friends" quickly chimed in. Spinella, a cook at the bar, "liked" her update. Several co-workers posted that they too owed money, most likely, said LaFrance, because DelBuono, who handled the books, "fucked up the paperwork." LaFrance then posted that DelBuono probably pocketed money from the employees' paychecks. Sanzone called him an "asshole."1 When

Sanzone came to work the next day she discovered that Daddona knew about the Facebook rant, and he fired her for disloyalty. Spinella met the same fate a day later; after the owners quizzed him about the Facebook discussion, they said that his "like" meant that he stood behind the disparaging remarks and apparently no longer wanted to work at the bar.2 In

firing them, the owners obviously thought they were on safe ground. To protect their brand, employers have long regulated what employees can say and do and courts have largely given them free rein to do so. Like most employees, moreover, these two worked at-will and thus could be fired for any reason not based on a protected class or in violation of an exception to the at-will doctrine.3 What the owners overlooked was the fact that the National Labor Relations Act [NLRA or Act]4 applies to non-union employers like Triple Play; in this respect, they had a lot of company, for many employers are unaware of this.5 Since it got involved in this area a few years ago, moreover, the National Labor Relations Board [NLRB or Board] has aggressively enforced the right of employees to use social media to discuss, and try to change, their working conditions. Had they known all of this, the owners might have considered whether the Facebook colloquy in which the two employees engaged was protected by the Act, so that discharging them was illegal. illegal.

In August, 2014, the Board set them straight. It re-versed the firings, holding that they were the product of the employees' involvement in concerted activity under section 7 of the Act; in so doing it erected a high bar for employers to fire employees for off-duty, off-site social media postings. That Sanzone used an obscenity to refer to DelBuono did not eliminate the protection of section 7. The Board also held that "liking" a post can be protected activity, and it voided a key part of the bar's social media policy as facially overbroad.

One of the Depression-era acts of Congress, the NLRA was passed to stabilize employer-employee bargaining and union relationships on a national level.6 While its primary focus is on the relationship between employers and employees in a unionized workplace (or in which a union is organizing), the Act has always applied to non-union employers. In general terms, it applies in virtually all private workplaces.7

Section 7 empowers employees "to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for . . . their mutual aid or protection."8 Section 8(a)(1) makes it an unfair labor practice "to interfere with, restrain or coerce" employees in the exercise of section 7 rights.9 Today, with over a billion people using Facebook, Twitter, LinkedIn, and myriad other social media platforms,10 people are struggling with how to apply this language in a technological age that the drafters never foresaw. In recent years the NLRB, all five of whose members are appointees of President Obama,11 has read these sections broadly. The questions are whether a post is entitled to section 7 protection and, if so, whether it forfeits that protection because it involves, e. …

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