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Employer Law Report

NLRB Issues Third Facebook Firing Decision (Employers 1, Employees 2). Would Bettie Page Roll Over In Her Grave?

Posted in Labor Relations

The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging in what the Board deemed protected concerted activity after the employees posted messages on Facebook complaining about their working conditions. The Board also held the store violated the NLRA by maintaining a “Wage and Salary Disclosure” rule in its handbook prohibiting employees from disclosing information about wages or compensation to any third party or other employees.

The employees worked at a retail store in a tourist area in San Francisco. The store closed an hour later than other stores in the area, and employees claimed they felt unsafe leaving when the area was deserted. The employees directed their concerns to the manager, who they claimed did nothing. The employees went over the manager’s head to the store owner who said they would close the store earlier. The manager got upset because the employees went around her to the owner and verbal arguments between the manager and employees ensued. So what did the employees do? Well, they did what every 20-something-disgruntled-clothing-store employee does when they are mad — they took to Facebook and posted about the situation to hundreds of their closest “friends.” While some comments were clearly unprotected venting that were not directed specifically to work conditions, e.g., “bettie page would roll over in her grave” and “I’m physically and mentally sickened,” one zinger was a more than a rant: “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 the crap that’s going on that’s in violation 8) [sic] see you tomorrow!”

And as many 20-something-clothing-store employees would do, one employee who saw the posts showed them to the owner who subsequently fired the other three employees. One of the terminated employees filed an unfair labor practice charge with the NLRB challenging the termination and the employer’s policy that prohibited employees from discussing their wages and salary.

By now, I think we know how this story ends. The NLRB found the Facebook posts were part of the employees’ efforts to get the clothing store to close earlier based on safety concerns and thus, the store committed an unfair labor practice when it fired the employees. Neither the ALJ nor the Board bought the employer’s argument that the posts were an attempt to entrap the employer into firing the employees and were not intended for employees’ mutual aid and protection. Going one step further, the NLRB held the posts themselves constituted protected concerted activity under the NLRA. Specifically, the NLRB found: “The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” the board’s decision said. “Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.” The Board ordered the store to reinstate all three employees and to give them back pay. That reunion should be interesting!

Takeaways:

  • This should be old hat by now as it follows the Board’s rulings in Karl Knauz Motors, Inc., case i.e., the “this is your car on drugs” and the Hispanics United of Buffalo Inc. case, i.e., the “a coworker feels that we don’t help our clients enough,” but, nevertheless, here we go again. If an employee complains in any forum about their working conditions, including on social media, those complaints likely are protected and an employer may not take adverse action against the employee for those complaints/posts.
  • Employers cannot issue gag orders and prohibit their non-management employees from talking about their wage and salary information. An employer can argue that this information is confidential, but they will lose this argument in favor of an employee’s rights under the NLRA.