Employee Discussions on Facebook about Employer Tax Mistakes are Protected

Employers occasionally make errors on paychecks. A recent NLRB decision reminds employers that the National Labor Relations Act can protect employee conversations about those mistakes – even if the conversations take place on social media.  In Three D, LLC, the employer fired two employees for their participation in a Facebook discussion about the employer’s withholding mistakes which mistakes resulted in additional state income tax payments from the employees.  One of the employees posted a number of comments about how the employer’s ineptitude resulted in her payment of additional tax, another employee “liked” the comment, and other employees and friends made additional comments.  The employer terminated the commenting employee and told her it was because her Facebook comment indicated she was not “loyal enough.” The employer then interrogated the other employee about why he “liked” the first employee’s comment, the identity of other posters involved in the conversation, and whether he posted anything negative. The employer then fired that employee because of his involvement in the Facebook conversation.

The NLRB found the Facebook discussion was concerted activity –  multiple employees were discussing terms and conditions of employment (the employer’s calculation of employees’ tax withholding) and the discussion was part of an “ongoing sequence” of discussions that began in the workplace and continued on social media.  And, because the employees discussed raising the tax issue at a staff meeting, the NLRB found that the communications were also protected because the employees were seeking to initiate, induce or prepare for group action.  The NLRB rejected the employer’s argument that the comments were defamatory or disloyal and thus not protected, in part because the employees were not accusing the employer of “pocketing employees’ money” or other wrongdoing, and because the comments were posted on a personal Facebook page and not intended for view by the public.

The NLRB also took issue with the employer’s Internet/Blogging Policy which prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers,” because it found that this language would reasonably tend to chill employees from engaging in concerted activities.

The NLRB decision reminds employers to tread carefully when firing employees based on on-line communications about work.  The decision is here: http://www.nlrb.gov/case/34-CA-012915


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