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Employers Should Heed Social-media Rulings

By PETER VICKERY, Esq.

What should you do if an employee ‘likes’ a Facebook post that accuses you of dishonesty? The answer may surprise you.

Peter Vickery

Peter Vickery

Are you on solid legal ground if you peruse a job applicant’s blog? The answer to that question could change, depending on what happens in the next session of the state Legislature. Employers interested in staying on the right side of social-media law should know about two recent decisions from the National Labor Relations Board (NLRB) and one state-level proposal that would further limit the ability to screen job applicants here in Massachusetts.

Let’s start with the federal decisions. Section 7 of the National Labor Relations Act (NLRA) protects employees who are engaged in “concerted activity for the purpose of collective bargaining or other mutual aid or protection.” It applies to unionized and non-unionized workplaces alike, so long as the business falls under the jurisdiction of the NLRB.

In the last four years, the NLRB has issued three reports on the extent to which the act protects employees’ online statements, and earlier this year it decided two cases that between them answer some questions about how far employers can go in protecting their businesses from the damaging effects of employees’ social-media activities. The first case involves Facebook’s ‘like’ button.

What’s Not to Like?

Can a series of public, profanity-laced Facebook comments accusing the employer of incompetence and dishonesty constitute protected concerted activity? Yes, says the NLRB. What about clicking ‘like’ to show you approve of a comment-forming part of the discussion? Is that a protected Section 7 right? Yes, it can be.

Ralph DelBuono and Tommy Dadonna own Triple Play Sports Bar and Grille in Watertown, Conn. They produced an employee handbook that contained a policy about online conduct. The policy warned employees that they would be subject to disciplinary actions for engaging in “inappropriate [online] discussions about the company, management, and/or co-workers.”

In early 2011, Triple Play’s owners learned that some of their employees were worried that they might owe more in state taxes than anticipated, so DelBuono and Dadonna decided to call a staff meeting. A week or so before the scheduled staff meeting, a Facebook discussion took place, initiated by a former Triple Play employee, Jamie LaFrance. That online conversation led to a decision from the NLRB, Three D, LLC d/b/a Triple Play Sports Bar and Grille (Aug. 22, 2014).

By way of status update on Facebook, LaFrance alleged that Triple Play’s owners “can’t even do the paperwork correctly” and that, as a result, she owed taxes to the state. She concluded her status update with a profanity. A Triple Play customer posted a comment, which also included a profanity.

One current Triple Play employee, a cook named Vincent Spinella, then ‘liked’ LaFrance’s status update. LaFrance posted an additional statement about DelBuono, saying “he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.” At that point Jillian Sanzone, a current Triple Play server and bartender, joined the conversation, stating “I owe too. Such an a—hole.” Two other Triple Play employees participated in the discussion as well.

The employers learned about the Facebook discussion and discharged Sanzone. After asking Spinella why he had ‘liked’ the status update, and concluding that he approved of the disparaging comments, they discharged him, too. Sanzone and Spinella took the matter to the NLRB.

An administrative-law judge decided that the Facebook discussion, including Spinella’s ‘like,’ was concerted activity and that the discharge of Sanzone and Spinella was unlawful. Triple Play appealed to the board, without success. Although the outcome was the same (the employer lost), the board differed from the judge as to which standard to apply in determining whether the comments forfeited protection under the act. In other words, the board agreed with the judge that the comments did not lose protection, but disagreed as to why.

Triple Play’s owners said the Facebook posts were disparaging and defamatory. But the board disagreed, deciding that the comments “did not even mention the respondent’s products or services, much less disparage them.” And although an employer has the right to protect its reputation, Sanzone’s and Spinella’s comments were “not so disloyal” as to lose the protection of the NLRA. Because they were posted on an individual’s Facebook page, the board held that the comments were not directed to the general public, but were more like a workplace conversation that “could potentially be overheard by a patron.”

So the first aspect of the case that employers should bear in mind is that Facebook discussions among non-unionized employees relating to work can constitute concerted activity, thereby bringing those employees’ statements within the protection of the NLRA.

Second, the NLRB does not consider Facebook discussions that flow from a status update to be directed at the general public. Would the situation be different if the discussion had started on a Facebook page with a link to a blog and then continued on the blog’s moderated thread? Perhaps. But for now, business owners need to remember that discussion on an individual’s Facebook page is not directed at the public in the eyes of the NLRB.

The third point concerns the reach of a ‘like’ on Facebook. The administrative-law judge had taken Spinella’s ‘like’ as approving of the discussion in its entirety, but the board concluded that it only meant he approved of the initial status update (i.e., “they can’t even do the [tax] paperwork correctly”). Had he been so inclined, Spinella could have ‘liked’ the additional disparaging comments separately, but he did not. When reviewing a contentious Facebook discussion, employers should bear this distinction in mind.

The final reason this case matters has to do with social-media policies. Unlike the administrative-law judge, the board found that the Internet/blogging policy’s language about “inappropriate discussions” was unlawful because it would tend to “chill employees in the exercise of their Section 7 rights.” The policy’s language was too broad, and the board ordered the owners to revise or rescind it.

The takeaway for employers? General statements that discourage inappropriate discussions are definitely out of favor with the NLRB, so your online/social-media policies might be in need of some changes.

Beacon of Hope

The second NLRB decision, Richmond District Neighborhood Center, 361 NLRB No. 74 (Oct. 28, 2014) displays a little more balance. The board ruled that the Facebook posts at issue did constitute concerted activity under Section 7, but were not entitled to protection. So the employer was allowed to withdraw its offer to rehire the posts’ authors.

The employer was a nonprofit in the business of providing after-school activities via the Beacon Teen Center at George Washington High School in San Francisco. The case concerned two of the center’s employees: Ian Callaghan, an activity leader, and Kenya Moore, a program leader. They seem to have been unhappy in their work and, judging by their plans for the coming school year, were intent on spreading the unhappiness around.

On Aug. 2, 2012, Callaghan expressed his dissatisfaction with the program being “happy-friendly-middle school campy,” and said he would “have parties all year” at the center, encourage the students to “graffiti up the walls,” and, more generally, “f— it up.” Moore’s comments were of a similar timbre: “F— em. Field trips all the time to wherever the f— we want,” and “when they start [losing] kids I ain’t helpin.” She also indicated that, in the year ahead, she would take the students to “clubs” and that her work attendance would be less than exemplary: “I ain’t never go[ing to] be there,” she stated (in all caps).

After seeing a screenshot of the discussion, the employer rescinded its offer to rehire the pair. So Callaghan and Moore filed a complaint with the NLRB, where the administrative judge, referring to the Facebook exchange, found that “these two employees were engaged in concerted activity when voicing their disagreement with management’s running of the teen center.”

If Callaghan and Moore had resumed their positions as activity leader and program leader, it seems fairly likely that the Beacon Teen Center would have been anything but “happy-friendly-middle school campy,” as Callaghan put it. So it is worth pausing at this point to reflect that, in the eyes of the judge, when two employees of a publicly funded after-school program, charged with the care of teenaged high-school students, expressed their intention to hold parties at the center, put graffiti on the walls, take the students away from the center on “field trips” (including trips to clubs of some kind) without informing anyone, and simply fail to show up for work, they were engaged in Section 7 concerted activity.

Fortunately for the employer — and for the students and their parents — although he deemed the discussion to be concerted activity, the judge also found that it was of such a character that the employer was allowed to consider the employees unfit for further service. He dismissed the case. The General Counsel of the NLRB, on the side of the employees, appealed to the full board, arguing that the Facebook posts “could not reasonably be understood as seriously proposing insubordinate conduct.” The board disagreed with the General Counsel and upheld the administrative judge’s finding that the posts had lost the act’s protection.

The final outcome of the Beacon Teen Center case may give employers some degree of hope for future NLRB decisions regarding potentially damaging social-network commentary. It serves as a reminder that there is, indeed, a line between protected concerted activity and concerted activity that is so egregious that it forfeits protection. Even if it does not demarcate that line clearly, at minimum, the case suggests that, if employees indicate on Facebook that they are going to jeopardize (a) child safety and welfare, and (b) program funding, it might just be permissible to discharge them.

On the other hand, it is important to bear in mind two points. First, even a discourse like the one authored by Callaghan and Moore can amount to concerted activity. Second, even after trial, the General Counsel of the NLRB took the position that the participants in that discussion (replete as it was with plans to render the teen center a chaotic danger zone) were not really proposing insubordinate activity.

State-level Development

In addition to noting the federal decisions, employers should keep an eye on a state-level proposal that might reappear when the Legislature assembles next January. If reintroduced and enacted, state Rep. Cheryl Coakley-Rivera’s bill from the last session, titled an “Act Relative to Social Network Privacy and Employment,” would add to the growing list of thou-shalt-nots. If the bill becomes law, employers would not be allowed to require that job applicants and current employees add the employer to their list of social-media contacts or grant the employer access to their networks.

One apparent concession to the rights and needs of business owners is the bill’s proviso that employers would not be prohibited from obtaining information about an applicant or employee that is “in the public domain.” That looks reassuring. But ‘public domain’ is a term with a precise legal meaning, and it applies to creative works whose copyright has expired. It is not a synonym for ‘publicly available.’ An applicant’s blog may be visible for all the world to see, but that does not strip it of copyright protection and put it in the public domain.

If this bill becomes law in its present form, a judge construing the exemption could conclude that the Legislature intended to allow employers to obtain only information that is in the public domain (i.e., not subject to copyright) and to prohibit employers from obtaining information that is not in the public domain (i.e., information subject to copyright). But most of the information an employer would be interested in reading is subject to copyright. This presents a serious problem.

Imagine an applicant’s blog that consists of screeds about various Massachusetts businesses and their customers. Unless the job applicant takes a conscious decision to dedicate the blog to the public domain, the applicant owns the copyright. Is the publicly accessible blog in the public domain? No. Because copyright attaches at the moment the author creates the work and lasts for the life of the author plus 70 years, there would be precious little online information that an employer could look at without falling foul of the statute.

If the “Act Relative to Social Network Privacy and Employment” is re-filed, it will merit serious attention from the Massachusetts business community.

Peter Vickery practices law in Amherst; (413) 549-9933; www.petervickery.com

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