The likes of Facebook and Twitter have given the public near infinite ability to voice their grievances and with it an opportunity for your employees to gripe online —and a recent ruling by the National Labor Relations Board (NLRB) threatens to make this headache for business owners worse.
Section 7 of the National Labor Relations Act had been expanded to cover public speech on social media, and that expansion has been broadened following a ruling in a case brought against Triple Play Sports Bar & Grille. What this means is that an employee that “likes” a post on Facebook that is critical of his or her employer is wholly shielded from disciplinary action over it.
In the case against the bar, one employee posted a complaint about the employer’s handling of its payroll. And they may have indeed had a point— the employer was found to have made a mistake in its estimation of state tax withholdings, leaving the surprise of covering the extra tax bill for the employee. After one employee liked the post and several others left comments, the company fired the entire group.
These postings received protection from the NRLB because it determined them to be work-related, and thus covered under Section 7. Although the employer argued that the inflammatory nature of the comments ought to leave them unprotected, the Board disagreed.
Here, given that the initial frustrations voiced were founded in fact, the Board dismissed the employer’s categorization of them as defamatory. No distinction was acknowledged between the original poster and the subsequent comments, so all received protection.
This ruling is hardly the only one concerning social media use by employees in recent years. It is difficult to imagine the Board reining in such statements in the future, so business owners must put real thought into disciplining an employee for their social media activities. To be safe, employers should speak to someone well-experienced and up-to-date with employment law—a Creative Business Lawyer®, for example.
We help business owners avoid costly legal disputes through proactive business planning, including crafting agreements and procedures to ensure you comply with state and federal law. To learn more about our personal approach to business planning, call us today at 612-206-3700 or reach out via our online contact form to schedule your comprehensive LIFT™ Foundation Audit.
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