We advise clients that they are free to terminate the employment relationship with a worker unless the action either breaches a contract or violates public policy. A public policy violation often takes the form of discrimination based on race, age, disability or other class protected by Title VII or FEHA. However, public policy violations are also found where an employer fires a worker for another reason – such as engaging in a concerted activity.
Employees engaging in concerted activities are protected by the National Labor Relations Act (“Act”). This means that employees are working together with respect to an issue related to the workplace. Interference with concerted activities, or discrimination because of concerted activities, is a violation of the Act, whether or not the workplace is unionized.
The Triple Play Bar & Grill discovered recently that an employee’s decision to “like” a Facebook discussion constituted concerted activity protected by the Act. One employee complained that because of the restaurant’s failure to handle tax withholdings properly, she was required to pay taxes when filing her return. Other employees echoed this refrain, using vulgar terms. One employee, did nothing more than “liked” the Facebook conversation.
The restaurant was not pleased with the comments. It considered the comments to be disloyal and defamatory. It confronted employees and informed them that they obviously would enjoy working somewhere else. That’s where the NLRB stepped in.
No one contested that the employees had engaged in protected activity. The issue was whether the Facebook comments lost protection under the Act because they were disloyal or defamatory. In this case, the Board concluded that the comments did not lose protection because they were related to an ongoing labor dispute regarding tax withholdings, and because the comments were not directed to the public, but were on a private Facebook page. Nor were the comments so disloyal to lose protection. They were intended to create mutual support among employees, and not to disparage a product or service, or to undermine the restaurant’s reputation.
The Board also concluded that a company policy prohibiting “inappropriate discussions about the company” to be overly broad and could reasonably be interpreted to encompass protected activity.
So what is an employer to do? First, handbooks must be scrutinized for provisions that might impinge upon employees’ rights to engage in concerted activities. Second, before taking action to discipline or fire a worker, an employer must examine whether its actions are the result of protected concerted activities. Even a “like” on Facebook is protected. The comments made must be sufficiently disloyal or disparage the services or products of the company before termination is warranted.