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When Labor Law and Social Media Collide, Who Wins?

By Casey C. Sullivan, Esq. on November 13, 2015 | Last updated on March 21, 2019

Looks like Facebook isn't just for grandparents and cat photos anymore. It's also a great platform for labor organizing -- or even just employee venting. And when employees get together online, they may find themselves facing recriminations at work.

So when labor law, forged from the unrest, strikes, and Wobbly uprisings of the 1930's, runs up against modern social media policies, who wins? The law, of course.

Facebook Likes Are a Protected Activity

Have you given a Facebook thumbs up to "I Hate My Boss," "Work Sucks," or "Dilbert?" You might be engaged in federally protected employee activity. Section 7 of the National Labor Relations Act protects workers' rights to organize, form unions, and engage in "concerted activities for the purpose of mutual aid and protection." Those rights extend to Facebook likes. That's what the National Labor Relations Board ruled last year, in a decision recently approved by the Second Circuit.

There, the Facebook likes were a little more specific than "Work Sucks." After filing his tax returns, an employee of a Connecticut sports bar, Triple Play Sports Bar & Grille, took to Facebook to complain about the bar's handling of his filings. One literary employee wrote: "Maybe someone do the owners of Triple Play a favor and but it from them. They can't even do the paperwork correctly??? Now I OWE money ...Wtf!!!!" Another liked the status and said "I owe too." It was hardly the cry of Bolshevik insurrectionists, but both workers were fired nonetheless.

And that, the NLRB and the Second Circuit agree, is illegal. Section 7 protects workers' statements on Facebook and, while employers are allowed prevent "disloyal or defamatory" comments to the public, a reasonable Facebook gripe doesn't rise to that level.

Even Email Gets Protections

For an institution often criticized as outdated, the NLRB has no problem dipping in to modern technology and its relationship to labor law. Besides Facebook, the Board has also ruled that email communications are protected under Section 7. Last December, the Board reversed a 2007 decision and announced that employers couldn't prevent workers from using their company emails for union activity, with some exceptions for productivity.

Confidentiality agreements, as well, can run afoul of Section 7. In March, the NLRB tossed out T-Mobile's overbroad corporate confidentiality policy, finding that it "clearly restrained" employees' rights to engage in protected activity. T-Mobile had tried to limit access to coworkers' phone numbers and emails, prohibited "detrimental comments," and disallowed email use for political and non-company purposes. Of course, T-Mobile's treatment of unionizing employees was especially restrictive. At one point, a manager attempted to withhold "the benefit of providing a 'high five' gesture" from unionizing workers.

That definitely earned a Facebook dislike.

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