Why your company’s social media speech policy could be overbroad

The Second Circuit gives employees lots of leeway online

By Brian Martucci
Tuesday, November 17, 2015

A recent ruling by the U.S. Court of Appeals for the Second Circuit reinforces the National Labor Relations Board (NLRB)’s infamous “Facebook ‘Like’” decision, in which it sided with two employees who’d been fired by a Connecticut sports bar for ‘liking’ and commenting on an inflammatory Facebook post written by a former employee.

The ruling reinforced the NLRB’s expansive views on protected employee speech and actions. Although the Court chose not to publish the decision, which would have established it as legal precedent in future cases, employers need to understand its potential implications.  

Words have consequences

The dustup started when a former bar employee posted a saucy Facebook comment about the owners’ questionable payroll tax withholding scheme:  “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!!!!

A then-current Triple Play bartender replied to the post with a similar comment that included a mild obscenity. A then-current line cook ‘liked’ this second comment, implying support. Management promptly terminated both employees.

What’s protected?  

According to Mark Mathison, a principal in Gray Plant Mooty’s Employment and Labor Law practice group, Triple Play turns on two fundamental issues. One, did Triple Play management violate federal labor law by terminating employees engaging in what the law defines as protected concerted activity? And two, did the mere existence of Triple Play’s “Internet and blogging policy,” outlined in the bar’s employee handbook, violate the law by exerting a “chilling effect” on employee speech and association?

Yes and yes, according to the NLRB’s decision and Second Circuit’s supporting ruling. “Even if the employees hadn’t been discharged,” says Mathison, “Triple Play employees could still have challenged the underlying policy.”

According to Mathison, the NLRB employs a very generous standard when evaluating adverse employer actions related to ongoing labor disputes. Basically, he says, policies that lead employees to “reasonably believe” that they’ll be disciplined for exercising protected concerted activity (as defined in Section 7 of the National Labor Relations Act) are “overbroad and unlawful.”

Triple Play might not be the last word

While the Triple Play case has probably run its course, it might not be the last word on this matter. A similar case, MikLin Enterprises, Inc., d/b/a Jimmy John’s, 361 N.L.R.B. 27 (August 21, 2014), is currently on appeals in the federal circuit.

MikLin turns on a dispute between a Twin Cities Jimmy John’s franchisee and Industrial Workers of the World, a pro-labor organization. After narrowly losing a union election that would have organized the bulk of MikLin’s Minnesota employees, IWW filed suit against MikLin, alleging that its pre-election discipline of workers who’d participated in organizing activities violated their Section 7 rights.

Six employees involved in creating and distributing posters calling out MikLin’s sick leave policy, which prohibited employees from calling in sick without a replacement, were terminated for their participation. Three others received written warnings.  

The NLRB ruled that the posters’ language was hyperbolic but broadly accurate (e.g., “Shoot, we can’t even call in sick”), and that none of the accompanying literature was untrue or malicious. The NLRB also ruled that the material was clearly related to an ongoing labor dispute, and thus fell well within the definition of concerted protected activity.

Minnesota employers (and employees) should keep one eye on MikLin, pending a final circuit court ruling. For now, though, caution is the word of the day.