In the July/August 2014 issue of Inc. Magazine, business owners were given a stern warning that any company with a social media policy that hasn’t been updated in the last 18 months is probably violating the law. The ongoing mission of today’s National Labor Relations Board (NLRB) seems to be finding and penalizing companies whose social media restrictions go too far.

In addition to having an attorney review any policies in a company’s employee handbook that might be interpreted to limit what an employee can say on social media, employers also need to be cautious when making termination decisions based on an employee’s online posts. In an August 22, 2014 decision, the NLRB found that an employer violated the law when it fired two employees based on their involvement in negative comments made on a former employee’s Facebook page. The case, against employer Triple Play Sports Bar and Grille, was groundbreaking in that it was the first time the NLRB had addressed whether a “Like” on Facebook could constitute protected activity under the National Labor Relations Act. The NLRB found, specifically, that:

• A Facebook “Like” was an endorsement of the complaint made in the former employee’s initial “status update” and thus constituted “protected, concerted” activity under the National Labor Relations Act (NLRA);
• The employees’ activity did not lose the protection of the NLRA, even though it was part of profanity-laced commentary; and
• Triple Play’s discharge of the employees was a violation of the NLRA.

To discuss how these issues apply to your company contact:
Laura A. Balson, (312)696-1351, labalson@golanchristie.com
or Margaret A. Gisch, (312)696-2039, magisch@golanchristie.com.