Law column: Sports bar vs. social media and ‘protected activity’

The National Labor Relations Board governs all private-sector employers, not just those with a unionized work force. This means that even non-union employers can be subject to liability if they interfere with employees' rights to engage in protected activity concerning wages and other terms of employment.

A sports bar in New York discovered this the hard way when it was cited for interfering with its employees' 'protected concerted activity” on social media.

The NLRB held that the sports bar's employees' use of Facebook's 'like” button can constitutionally protected, concerted activity under the law.

The NLRB further held that the employer's termination of the employees was an unfair labor practice.

The employees worked at a New York sports bar called Triple Play Sports Bar and Grille and were not unionized. A former employee complained on Facebook about owing taxes she claimed Triple Play failed to withhold.

'Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money ...

!!!!”

The post attracted a number of hostile comments, along with discussions of a future meeting to address this and other issues and the potential filing of a formal complaint against the company.

The former employee then posted that one of the Triple Play's owners was a 'shady little man” and suggested that he was pocketing money. A waitress still employed at Triple Play then commented in the same thread: 'I owe too,” she wrote.

Another current employee simply pressed Facebook's 'like” button regarding the tax paperwork comment.

Triple Play terminated both employees for violating its social-media policy. The NLRB held that the terminations were an unfair labor practice because they were made in response to the employees' protected concerted activity.

Triple Play tried to argue that the two fired employees made defamatory and disparaging comments because they, in effect, 'endorsed” the former employee's comments calling the owner a 'shady little man” and insinuating he was stealing.

But the NLRB disagreed, finding that the fired waitress's comment regarding being owed money and the fired cook's pressing of the 'like” button should be viewed as in response to the original post - definitely protected activity - rather than the former employee's later post regarding the owner's moral character, which may not have been protected as it was arguably defamatory.

The NLRB also invalidated Triple Play's social-media policy, which prohibited 'inappropriate discussions about the company, management, and/or co-workers,” because employees reasonably could interpret the policy as prohibiting them from engaging in protected activity. (Triple Play has appealed to the U.S. Court of Appeals for the Second Circuit in New York.)

This case serves as a reminder for all employers to be careful. While all employers should have an acceptable-use policy that includes employees' conduct on social media, employers must ensure they are not interfering with employee's protected activity by doing so.

Your social media policy and attempts to enforce it may result in costly litigation with the NLRB.

l Wilford H. Stone is with Lynch Dallas Attorneys at Law, wstone@lynchdallas.com