NLRB makes it harder to discipline employees for their outbursts against their employer

By Jim Pease, of Counsel to Constangy, Brooks & Smith, LLP1

A recent case2 before the National Labor Relations Board gave the Board the opportunity to consider when an employee may lawfully be discharged for actively participating in a conversation on social media, such as Facebook, in which the employer is criticized.

The Facebook conversation was started by a former employee who believed the employer had miscalculated his withholding tax because it was insufficient to cover the tax he had to pay on his income from the employer. The conversation was joined by several off-duty employees and by two friends of the former employee who were customers of the employer. Statements were made in the conversation that the employer considered defamatory, including that the employer was a liar and was pocketing the employees’ money.

The following day the employer discharged two of the employees who had participated in the conversation, but who had not made any statement alleged to be disparaging or defamatory, but who, in the middle of the conversation, had selected the “Like” button under the former employee’s initial statement of his complaint against the employer. The employees didn’t select the “Like” button under any of the subsequent statements made in the conversation, some of which contained allegedly disparaging or defamatory statements. However, the employer asserted that the employees’ selection of the “Like” button had adopted the allegedly disparaging and defamatory statements made by other participants throughout the conversation thereby causing those employees to lose the protection of federal law.

Federal law protects the right of employees to communicate with other employees and with the public regarding the employees’ terms and conditions of employment. That right extends to criticism of the employer’s conduct affecting employee terms of employment. Therefore, it is clear that the employees had a right to criticize the employer for failing to properly withhold taxes. That criticism would be protected even if the employer had not, in fact, improperly calculated the employees’ withholding taxes.

However, the employees’ right to criticize the employer is balanced against the employer’s right to maintain order at its work place, especially in the face of vigorous untrue or defamatory criticism of the employer that could undermine the ability of the employer or its supervisors to maintain discipline among employees in the workplace.

In evaluating the employees’ conduct to determine if it lost the protection of federal law, the Board refused to apply the cases that permit employers to discipline employees for on-the-job opprobrious outbursts in the presence of supervisors and other employees. The Board did so because the statements were made off the work site during the employees’ off-duty hours, there were no members of management participating in the Facebook conversation, and the statements were not directed to the general public.

The Board further hurt the employer’s case by deciding that the employees’ selection of the “Like” button only made them responsible for the particular statement the employee had “Liked” and that the employees were not responsible by reason of their participation in the conversation for any other statement made by employees or nonemployees in the Facebook conversation even those statements were unprotected.

The Board went on to evaluate whether the statements in the Facebook conversation were so disloyal or defamatory to cause the loss of the protection of federal law. The Board made it clear that in this evaluation it would only consider defamatory a statement made with knowledge of its falsity, or with reckless disregard of whether it was true or false, and made for the purpose of injuring the employer. And, even if the statements were disloyal or defamatory, they would still be protected if they were related to an ongoing dispute between the employees and the employer, in this case, the protected dispute over whether the employer had properly calculated withholding taxes, and the statements were so disloyal or defamatory that they cause the Board to conclude the employees lost the protection of federal law. As a practical matter, that would take proof that the employees’ statements must not only be severely disloyal or defamatory but that they actually did interfere with the employer’s ability to manage its workforce in the workplace.

The effect of the Board’s decision is that it will be extremely difficult for employers to prove that an employee’s disparaging or defamatory statements against their employer were either unrelated to a labor dispute, or were so severe and disruptive of the employees in the workplace as to cause the employee to lose the protection of federal law. Only if that heavy burden carried by the employer would it be lawful for the employer to discipline the employee, assuming there was not other evidence showing that the employer’s action was discriminatorily motivated.

The morale of this NLRB decision is, before making any decision to discipline any employee for any disparaging statements or outbursts against the employer, carefully investigate the facts and consult with experienced labor relations counsel.

[1] If you have any questions about this article, contact me at (608)807-5276 or jpease@constangy.com.

[2] Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014)