Being Tricked into Firing an Employee is Not a Defense – More From the NLRB on Facebook Firings

We’re extremely pleased to have another guest blogger this week – our colleague, Karen Schanfield.  Karen is a shareholder in Fredrikson & Byron’s Employment & Labor Law Group, and, among other accolades, has been named by her peers as one of the Top 40 Labor and Employment Law Attorneys and one of the Top 50 Women Attorneys in Minnesota.  Thank you, Karen, for this post!

In its most recent ruling on the subject, the National Labor Relations Board again concluded that terminating non-union employees for postings on Facebook violated the National Labor Relations Act. The case, Design Technology LLC dba Bettie Page Clothing, had a couple of interesting twists. 

First, the employer argued that it had been “trapped” into firing the employees (the theory being that the employees were deliberately trying to get fired), a claim the NLRB found “nonsensical.” Second, the NLRB learned in the course of the proceedings that the company had a rule prohibiting employees from discussing their salaries with one another, a clear violation of the Act. Consequently, the NLRB not only ordered reinstatement with backpay for the three employees, but required the employer to rescind or replace the policy and post a notice prepared by the NLRB at all locations where the policy applied. 

So, what actually happened?  Well, an employee at one of Bettie Page Clothing’s stores in San Francisco asked the store manager if the store could close at 7 p.m. like other stores in the area, rather than 8 p.m., saying that employees felt unsafe in the neighborhood after other stores had closed. When the request was denied, the employees complained to one another and others on Facebook. In addition to comments like “bettie page would roll over in her grave” and “It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so,” one of the employees posted: 

“hey dudes, it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all that crap that’s going on that’s in violation 8) [sic] see you tomorrow!” 

All three employees were terminated. The Board concluded that two of the employees were engaged in protected concerted activity when they presented their concerns to the store manager and owner and that the Facebook postings were a continuation of that effort. It also went a step further, holding that the postings among all three employees would have been protected concerted activity even without the prior conversations with management. 

The Board also made short shrift of the employer’s “discharge conspiracy” theory. Not only did the Board find that there was no evidentiary support for the argument, it held that even if the employees were acting with the hope of being fired, Bettie Page had not shown that their actions were not protected. 

The takeaway? The NLRB remains keenly interested in social media and its impact on the rights of both non-union and union employees. Employers are well advised to review their handbooks, social media policies, and practices to ensure that they do not inadvertently run afoul of the NLRA.

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