In Three D LLC, 361 NLRB No. 31 the NLRB held that an employee’s use of Facebook’s “Like” button was protected activity under the NLRA. Two employees were terminated after they complained about erroneous taxes withheld from their paycheck. One employee criticized the company on his Facebook page which another employee liked while adding a comment calling the owner an expletive. In overturning their termination the Board found that the Facebook discussion involved in ongoing dispute about pay practices and the comments were made on a private Facebook page rather than on one directed at the public.
A few of the Board members also attacked the company’s Internet blogging policy in the employee handbook as placing a potential chill on Section 7 and 8 rights. Not the first time they have gone after handbook policies
Employer lesson: be careful about terminating employees due to any social media activities critical of the company. Even if they are rude, distasteful and potty mouthed. While there are limits to employee activity they are broad. Seek the advice of counsel before terminating anyone on these grounds.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.
