The NLRB continues to issue decisions about whether an employer can lawfully terminate employees based on social media activity, and whether workplace policies violate the law protecting employees’ rights to engage in protected concerted activity. However, last week’s decision in In re Design Technology Group, LLC had an interesting twist.
Wikipedia places the root of the word “entrapment” as follows: “The word entrapment, from the verb ‘to entrap’, meaning to catch in a trap[.]” Thanks, that was helpful. It goes on to say: “In criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment is a possible defense against criminal liability.” Can an employee defend a Facebook firing case by arguing that it was “entrapped” into firing the employees?
The employer in In re Design Technology Group runs an “upscale women’s clothing store”. Two claims were at issue in the hearing before an ALJ. First, the ALJ held (confirmed?) that the employer violated the National Labor Relations Act by having a handbook policy that prohibited the disclosure of employee wages or compensation to other employees or a third party. Although many companies still create such a prohibition in manuals and contracts, the ALJ’s holding is consistent with what has been the NLRB’s position for some time.
The second claim, however, is a tad more interesting. Three sales employees were discussing several work-related issues in person, and their discussion continued on Facebook. Among the complaints made were about how the store manager treated them and other store employees. The store manager later learned about the complaints, and subsequently fired the employees. At the hearing, the employer made much about the fact that the employees were “giggling and smiling” at the termination meeting, and that Facebook posts after the meeting suggested that the employees were happy to have been fired, and perhaps even set up the circumstances in order to get fired and sue the employer.
Adopting the ALJ’s decision, the NLRB was not persuaded by the employer’s defense:
The judge correctly rejected the Respondent’s ‘discharge conspiracy’ theory. The Respondent contends that the Facebook postings were not protected because the employees had ‘no honest and reasonable belief’ that the purpose of their conduct was for the mutual aid and protection of employees’ and that instead, the employees ‘schemed to entrap their employer into firing them.’ The judge found the conspiracy theory to be ‘nonsensical,’ and we agree. There is no credible evidence that the employees’ actions were undertaken to entrap the Respondent into committing an unfair labor practice. But even if the employees were acting in the hope that they would be discharged for their Facebook postings, the Respondent failed to establish that the employees’ actions were not protected by the Act.
Employer Take Away: What should you as an employer take away from this development?
The NLRB says that entrapment is not a valid defense to a proposed violation of employees’ rights to engage in protected concerted activity. That is, if the employees did engage in protected concerted activity under the National Labor Relations Act, it does not matter if they did so for the purpose of getting fired. Although the decision seems to toss aside the notion that a good faith intent to be engaging in “mutual aid and protection of employees” is required to show that conduct is “protected concerted activity” in the first place, in the end the ALJ was clearly not impressed with the testimony or general credibility of those who appeared on behalf of the employer at the hearing.
It remains to be seen whether an “entrapment”-like defense to these cases will gain any traction in later cases. For the time being, it would behoove you to focus less on the motives of the employees engaging in certain conduct, and more on whether the conduct itself is protected, before deciding to take some adverse action because of the conduct.