If non-union employers haven’t been paying close attention to NLRB decisions about social media, it’s officially time to get focused. In late October, a federal appeals court affirmed an NLRB decision that found employees of a non-union bar were unlawfully terminated for a very brief Facebook interaction regarding the bar’s income tax withholding practices. Perhaps the most important aspect of the decision for employers was the court’s support for the NLRB’s position that the mere act of one employee “liking” the Facebook post of another employee that concerns pay and work issues constituted protected concerted activity under the National Labor Relations Act. Under section 7 of the Act, employees have the right to engage, without penalty from an employer, in discussions with other employees about “terms and conditions of employment”, such as pay, working conditions, or, as in this case, the income tax withholding practices of the employer.
The court also affirmed the NLRB’s finding that the employees’ use of obscenities, even in the online presence of customers, does not affect the employees’ legal protections. In keeping with many recent decisions, the court also agreed with the NLRB that the employer’s Internet Policy which prohibited “engaging in inappropriate discussions about the company, management, and/or co-workers” violated the Act because it would have the effect of quashing employees’ right to discuss terms and conditions of employment.
All employers, whether those with a union-represented workforce or not, should tread very carefully when contemplating discipline for online employee interactions. In the current world of protected concerted activity, words are no longer even necessary to garner protection.