Like It Or Not, Your Employees Can Like It

It gets boring to blog just about the NLRB. We need some judicial action to get the juices flowing a little more. We got a little something last week.

Question: Is merely clicking the “like” button on Facebook tantamount to protected speech? I’ve argued that “liking” isn’t necessarily an act with any content at all. It could mean a lot of things, not the least of which could be that one Facebook user is simply “tagging” something with a “like” so that that user can have his or her “friends” see what the user has “tagged/liked.” Yes, I’m getting annoyed with all the quotes too.

In any event, the answer: Apparently yes. I first discussed the issue here on May 8, 2012, and again here on October 22, 2013. Then last year, on September 29, 2014, I noted here how the NLRB continued its pro-employee leanings by finding the click of the Facebook “like” button to constitute protected speech in In Re: Three D, LLC d/b/a Triple Play Sports Bar. In that case, employees were fired essentially for “liking” a post that was critical of their employer sports bar.

Just last week though, the 2d Circuit Court of Appeals affirmed the NLRB’s decision. The Court spilled much ink on the appropriate deference to be afforded to a governmental entity like the NLRB, before going through an analysis of whether the employee’s click of the “like” button was protected and concerted (it held “yes”) and then whether the employee otherwise acted in such a disloyal manner to lose the protections under federal law (it held “no”). Implicit there is that the decision really assumed that merely “liking” something was an activity or speech that has sufficient substance to be protected in the first place.

The next step in this case, at least procedurally, is for both sides to argue whether this “summary order” by the 2d Circuit should be published as an actual order with precedential value (Note: according to 2d Circuit rule, “rulings by Summary Order do not have precedential value). But that’s like saying “don’t clean up the toothpaste that’s already out of the tube,” or “don’t go get that horse that’s out of the barn,” or, well, you get it.  The 2d Circuit has spoken on this issue, and is the first appellate court to do so. Whether you like it or not.

Employer Take Away:   What should you as an employer take away from this development?   

So what’s next? A lawsuit over an employer firing an employee because it didn’t like a chosen emoji?  I don’t know. What I do know is that your company still needs to carefully engage in the appropriate analysis when deciding whether to take adverse action against an employee for doing something – anything? – on social media. It’s not just what the employees expressly say, it may also be what they click.

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WTF already?! As in, “where’s the fairness?” Time for an acronym update from our favorite government acronym, the NLRB.

You will certainly remember that we have recommended asking yourself three questions before determining whether the NLRB would have a problem with you disciplining one or more employees: First, did the employees engage in “concerted” activity? Second, if yes, was that concerted activity “protected” under the National Labor Relations Act? And third, if yes to the first two questions, did the otherwise protected concerted activity lose its protection under the Act because it was so offensive or reckless? 

The vast majority of the NLRB’s decisions and guidance have focused on the first two questions. However, we are now starting to see the NLRB beginning to shape its position on the third question, and the parameters within which otherwise protected activity may still keep employees from success under the Act.

Which brings us to the Board’s latest decision in In re Pac Bell Tel. Co., where telephone technicians wore buttons and stickers that contained the phrases “WTF Where’s the Fairness,” “FTW Fight to Win,” and “Cut the Crap! Not My Healthcare.” The union argued that they had the right under the Act to wear such union insignia, while the employer contended that any such right was lost because the messages were vulgar and offensive.

The NLRB sided with the employees.  It found that acronyms such as “WTF” and “FTW” did not stand alone, but were followed immediately by non-vulgar phrases that gave relatively innocuous meaning to the acronyms:

“We find that the possible suggestion of profanity, or ‘double entendre,’ . . . is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product[.]”

“Cut the Crap,” or, as I often like to refer to it, “CTC,” was also deemed protected under the Act because the NLRB felt that “crap” had no “scatological content.”


Employer Take Away:   What should you as an employer take away from this development?

Whether the speech is through social media, or on t-shirts, hats, or buttons, your company must still toe the line between permissible discipline and allowing speech that you might not generally like. As we’ve said in the past, there is going to be a high threshold before the NLRB will determine that protected concerted activity has lost its protection under the Act. Pac Bell teaches us that double entendre with a mere “suggestion of profanity” may not be enough, and that there will likely need to be a very clear (and sole) offensive statement expressly made.

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Are You A Nasty Mother Fu*ker?

I don’t know if you are or aren’t. That’s probably for a different (wish I had purchased that domain). However, I do know that your employees apparently can call their manager a nasty mother fu*ker (is the asterisk still really necessary?). Now mind you, it’s not all workplace wild, wild west. But the NLRB continues to speak and your company continues to need to hear it.

Part of the problem lies in the fact that we either don’t know exactly where the line of decorum is, or that line constantly moves. As recently stated in the NLRB General Counsel’s March 18th memorandum, employees can lawfully be prohibited from being discourteous or disrespectful to a customer of yours or to any other member of the entire general public in contact with your company. The memorandum said that your company can also enforce rules prohibiting employees from “making inappropriate gestures” to co-workers, and from “being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor [or] coworker” when such rule is placed in the “context” of rules banning “serious misconduct.” And, employees can be required “to work in a cooperative manner with management/supervision.”

Yet, in the latest episode of the serial “As The NLRB Turns,” we now learn that your employees cannot be prohibited from calling their managers a nasty mother fu*ker. So that isn’t an “inappropriate gesture”?  Not insubordinate or disrespectful, in any context?  That’s the 2015 version of working “in a cooperative manner with management/supervision”?  Huh?

In In re Pier Sixty, LLC, the NLRB affirmed the findings of an Administrative Law Judge that the employer unlawfully infringed on an employee’s right to engage in protected concerted activities based on certain social media posts. The case involved a catering hall and employees who allegedly believed they were treated “disrespectfully and in an undignified manner.” The decision notes that the employee at issue vented his frustration with certain treatment of the company’s servers by posting the following on a personal Facebook page:

“Bob is such a NASTY MOTHER FU*KER don’t know how to talk to people!!!!!  Fu*k his mother and his entire fu*king family!!!! What a LOSER!!!! Vote YES for the UNION.” [Note: the employee wasn’t as constrained to include the asterisk.]

According to the decision, “vulgar language is rife in the Respondent’s workplace, among managers and employees alike.” Maybe that “contextual analysis” is what made the comment less offensive – at least to the NLRB – since the NLRB balanced both sides’ interests before determining that:

“an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’ comments were so egregious as to take them outside the protection of the Act.”

Interestingly, there was a lone dissenter who WOULD have found that the “vulgar and obscene Facebook comments lost the Act’s protection” because, among other reasons:

“Even conceding a lack of evidence that Perez intended to engage in or threaten actual violence against McSweeney or his family, the posting reflects a level of animus and aggression directed toward McSweeney personally that goes well beyond the contrasting statements in the record that the employer tolerated and that are also distasteful[.] . . . We live and work in a civilized society, or at least that is our claimed aspiration. . . . Personally directed and insulting statements like Perez’ Facebook posting about McSweeney, his mother, and his family, typically cause irreparable damage to working relationships. It serves no discernible purpose for the Board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity. It certainly does not serve the goal of labor peace.”

Employer Take Away:   What should you as an employer take away from this development?

At least there was a dissent. Still, majority rules, and your company must continue to tread carefully when deciding to take action against an employee for social media posts or activity. Continue to go through the analysis about which we have so often posted. Yes, NLRB precedent says that even concerted discussion about the terms and conditions of the workplace may still lose the law’s protection if the employee was so opprobrious or over-the-top inappropriate in that discussion.  The majority in Pier Sixty shows, however, that the threshold required to prove that is still a high one.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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