NLRB Continues to Expand Employee Protection

James Becker

September 26, 2014

In a recent decision, the National Labor Relations Board ("NLRB") has continued its trend of significantly expanding employee workplace protections in the area of social media.  In Three D, LLC d/b/a Triple Play Sports Bar, the NLRB ordered an employer to reinstate and pay back wages to two employees who were fired, one for commenting on Facebook that her employer was an "asshole" and the other for liking the post.  The NLRB reasoned that since there were multiple employees involved and the derogatory comment was couched in terms of complaining about a workplace issue, this was a protected concerted activity.

This decision is not really surprising given the expansive reading the NLRB has been giving to the concept of protected activity under the National Labor Relations Act.  What is a little surprising is that this is the first time the NLRB has specifically condoned this type of conduct.  There has been always been a distinction between legitimate protected protests and protests that were not protected because the employee went too far.  Most labor and employment lawyers would expect that calling your boss a derogatory name would result in the activity not being protected and resulting in a termination.  Apparently the NLRB felt differently. 

A second noteworthy part of this decision was its continued cracking down on employer Internet policies.  In this case the employer has a policy that prohibited "inappropriate" Internet use.  The NLRB found that this was too broad and had the effect of "chilling" employee workplace complaints.  Based on the the NLRB forced the employer to change their policy.

The bottom line to all of this is that employers need to take another critical look at their Internet and social media policies.  Until the composition of the NLRB changes, employees will continue to enjoy greater protection of their complaints - so long as they actually reference the workplace.