Can You Fire An Employee for A Facebook “Like”?

Since the arrival of social media sites such as Facebook and Twitter, employers have worried about protecting themselves from disparaging comments by their employees. Meanwhile, the National Labor Relations Board (NLRB) has intensified its scrutiny of employers’ social media policies and whether such policies prohibit employees from discussing the terms and conditions of their employment. The National Labor Relations Act (NLRA) gives employees the right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees,” and social media has become one of the main avenues through which employees do so. An employer who violates this right and disciplines or fires an employee for engaging in protected activity faces big penalties, including having to reinstate the employee.

In a series of rulings over the past few years, the NLRB has taken the position that social media sites are “virtual water coolers,” and whatever employees have a right to discuss around the workplace with respect to the terms and conditions of employment, they may also discuss on social media. In an August 22, 2014 decision, the NLRB decided that “liking” a Facebook post that deals with working conditions is also “protected concerted speech.” Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The NLRB found that Triple Play Sports Bar and Grille violated the NLRA when it terminated two employees for participating in a Facebook discussion about the additional state income taxes they owed because of the employer’s withholding mistakes, including the one who had only “liked” the post.

The NLRB concluded that the Facebook discussion was protected activity because “the purpose of [the] employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation….” The judge found that the employee’s “like” “expressed his support for the others who were sharing their concerns and therefore ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” In balancing the interest of Triple Play’s owners in preventing harmful comments by their employees, the NLRB held that the comments were not “so disloyal” as to lose protection under the NLRA.

The NLRB also reviewed Triple Play’s Internet/Blogging Policy, and found that restricting online communications involving “confidential or proprietary information about the Company, or…inappropriate discussions about the company, management, and/or co-workers” violated the NLRA because it could reasonably include protected discussions. While the NLRB acknowledged that the policy did not “explicitly restrict protected activity,” it was still problematic because employees could reasonably interpret it as “proscribing any discussions about their terms and conditions of employment [that the employer] deemed ‘inappropriate.’”

As this decision makes clear, because a “like” standing alone can be protected, employers should tread carefully when considering taking action against employees for their social media activities and employer social media policies should be narrowly tailored to avoid prohibiting protected discussion. The NLRB will likely continue to scrutinize employer social media policies, and now is the time for employers to assess how to properly limit and respond to employees’ social media use.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com. 

NLRB Continues the March Madness by Recognizing College-Athletes as Employees

Yesterday, the Chicago regional office of the National Labor Relations Board (“NLRB”) issued a decision that could dramatically change the landscape of college athletics as we know it today. The Regional Director for the NLRB found that scholarship football players at Northwestern University are considered employees within the meaning of the National Labor Relations Act (“NLRA”), and therefore, eligible for union representation. This drastic departure from the traditional notion of a student-athlete will almost certainly be appealed and litigated for years to come.

In reaching its conclusion, the Regional Director defined an “employee" as "a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment." The RD found that the scholarship football players performed valuable services for the university that resulted in Northwestern generating approximately $235 million in revenue over a nine year period. The RD found that these players were compensated in the form of tuition, fees, room and board up to $76,000 per year and that the “tender” they signed before being granted a scholarship was akin to an employment agreement. The RD also found the players are subject to the university’s control taking into consideration the fact that players devoted almost 40-50 hours of their time each week to football-related activities and the coaches exercised control over most aspects of the players’ private lives, including living arrangements, outside employment, and even Internet postings.

The university argued that the scholarship football players were analogous to graduate assistants, who were previously found by the NLRB to not be employees. The Regional Director distinguished this argument by finding that football players are not primarily students given their time commitment to football-related activities, the fact that their athletic duties did not constitutes a core element of their educational degree, and ultimately found “that the overall relationship between the graduate assistants and their university was primarily an educational one, rather than an economic one.”

The Northwestern football players are seeking to bargain for guaranteed scholarships, post-career medical benefits, and limited contact for practices. If this ruling is upheld, players would now be able to bargain for additional matters such as allowing athletes to accept endorsements while in school or even being paid for playing collegiate athletics. As we’ve seen with professional sports, collective bargaining can also lead to player strikes and lock outs, which has canceled seasons in their entirety in the event players and universities are at an impasse.

Though this could lead to a significant change in college athletics, the decision is limited to scholarship players (not walk-ons) at private schools. Public universities comprise the vast majority of FBS Division I teams, and they would need to follow their own state’s laws related to collective bargaining. However, the ripple effects of this decision could lead to other employment related consequences, such as a determination that players are considered “employees” under the FLSA, thereby entitling them to back wages and potential overtime claims, workers compensation claims from football-related injuries, and unemployment compensation in the event a student is cut from the program.

In our opinion, this decision undermines the true meaning of collegiate student athletes – they are students first, and athletes second. By regarding students as “employees,” this administration is now taking the position that these players should be considered blue-collar workers. By treating students as blue-collar workers, the true reason for why they are at a given university – to receive an education – is eroded even further, if not entirely as universities will now view their players purely through economic lenses and measured by the revenue they bring in.

A more practical approach to solve this dilemma may be to set up an educational trust for these athletes. Revenue generated from collegiate programs could go into a trust that is set-up exclusively to benefit these athletes’ continued educational pursuit. The vast majority of collegiate athletes will not go on to play professionally and by setting up a trust that can be used to pursue graduate and doctoral degrees, you are incentivizing these athletes to continue their education, and using their prior athletic commitment as a means to fund that pursuit. This is just one of the alternatives we feel is better than throwing blue collars on these student athletes and leaving the majority of them at the end of their collegiate career without any means to pursue a career in anything other than sports. The government should not pigeonhole these student athletes into the football field or basketball court, but rather, promote incentives that allow these players to continue their educational pursuit beyond their playing days.

Nick Johnson is an attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at njohnson@BerenzweigLaw.com.

Facebook and employee grievances

A salesperson for a BMW dealership posted mocking comments and pictures on his Facebook page about the food the dealership served at a promotional “Ultimate Driving Event” held to introduce clients to the new BMW Series 5.  The salesperson was disappointed that his dealership chose to serve hot dogs, bags of Doritos, cookies, and mini water bottles purchased from the local Sam’s Club at an event where the dealership should have been trying to impress its clients.  The Facebook postings complained that the choice in food was not befitting an event centered on a luxury car product, a viewpoint that the salesperson discussed with his colleagues before he posted them.  The negative Facebook postings were accompanied by photos of the salesperson and his colleagues posing in mocking fashion with various food items at the event.

The BMW dealership eventually discovered the Facebook postings, and fired the salesperson for demeaning the company.  The salesperson challenged the legality of his termination, claiming that his Facebook postings were protected activity since he was venting about workplaces issues.

Who won this issue?
The salesperson did.  A judge in New York found that the Facebook postings were protected under Section 7 of the National Labor Relations Act (NLRA), since the cheap food selection could have resulted in less car sales and therefore reduced commissions for the salesperson and his colleagues.  The judge noted that of the salesperson’s 95 “friends” on Facebook, 16 of them were co-workers at the dealership.  Therefore, the postings could be seen as facilitating a discussion among employees of the dealership about workplace issues.

Legal issues such as this involving social media in the workplace are becoming more prevalent every day.  Section 7 of the NLRA applies to all employees and workplaces, not just unionized ones, and prohibits any conduct by an employer that restricts an employee’s ability to commiserate with other employees about workplace issues such as compensation.  Not too long ago, the main concern here would have been employees griping around the water cooler.  But with the advent of social media such as Facebook and Twitter, employees are using online postings to air their employment grievances, creating a major legal dilemma for employers who attempt a heavy-handed approach in response.  Companies need to take great care and work with experienced employment counsel in crafting an effective social media policy.