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Facebook Survey Firing Lawful; Unprotected Comments Prompted Discharge: NLRB General Counsel's Office
Practical Law Legal Update 5-555-4506 (Approx. 6 pages)
Facebook Survey Firing Lawful; Unprotected Comments Prompted Discharge: NLRB General Counsel's Office
by Practical Law Labor & Employment
| Published on 27 Jan 2014 • USA (National/Federal) |
The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum recommending dismissal of an unfair labor practice (ULP) charge against a purported employer for discharging two individuals for publishing results of a survey on Facebook which included an allegation by an anonymous survey-taker that arguably defamed the purported employer. The allegation was unprotected by Section 7 of the National Labor Relations Act (NLRA) because it did not concern employment terms and conditions.
On January 23, 2014, the Division of Advice at the NLRB's Office of the General Counsel released an advice memorandum dated December 23, 2013, providing guidance on what kind of social media speech is protected by Section 7 of the NLRA.
The charging parties in Varsity Brands, Inc. are two cheerleading competition judges who had acted as judges for Varsity Brands, Inc., a company that promotes and markets cheerleading educational camps, clinics and competitions across the US. The charging parties composed and distributed an online survey, including through Facebook, to judges and judges' groups relating to their opinions on pay, working hours and training, with additional space at the end for comments. One anonymous participant complained in that section that:
[B]ig gyms are granted extra leniency because of how many teams they bring. NCA/ [National Cheerleading Association] Varsity will change scores of judges and not tell judges until the next day.... I complained about this to NCA and no one listened. [The] Varsity [Vice-President] [led] the[] way in this change.
The Varsity Vice President took the survey himself after it was made available on June 22, 2013. On July 23, the charging parties sent the final survey results, including participants' comments, to the Vice President and to Varsity's main competitor. On July 24, the charging parties publicized the results, including those on Facebook, to two smaller cheer companies, six different media outlets and various individuals.
The Vice President contacted one of the charging parties on July 23 to express his concern that she had included the anonymous participant's complaint in the results, as it defamatorily accused the Vice President of fixing scores. After exchanging heated texts and e-mails over the next few days, the Vice President informed both charging parties on July 26 that Varsity would no longer use them as judges for the season. These judges filed unfair labor practice (ULP) charges against Varsity alleging they were terminated for exercising Section 7 rights.
The Division of Advice did not reach the issue of whether the charging parties were employees with Section 7 rights under the NLRA, but found that even if they were:
- Section 7 did not protect the score fixing comment because it did not relate to the judges' terms and conditions of employment. The anonymous comment lacked the requisite nexus with the judges' terms and conditions as identified by the survey because there was no evidence that:
- judges whose scores were changed suffered an adverse employment impact; and
- the judges' individual or collective reputations would be harmed by the score tampering accusation, as the allegation impugned Varsity's integrity, not the reputations of the affected judges.
- Varsity, the purported employer, discharged the charging parties for publishing that one comment, not the survey as a whole. The Division of Advice found that:
- the Vice President's July 23 text message and his e-mail exchange with the charging parties the next day showed he was angry about the score fixing accusation, not the survey itself; and
- although the Vice President knew about the survey in June, he did not discharge the charging parties until well over a month later on July 26, a few days after he read the score fixing allegation.
The Division of Advice:
- Concluded that because the charging parties engaged in unprotected conduct, Varsity did not violate the NLRA when discharging them.
- Directed that the ULP charge against Varsity be dismissed if not withdrawn.
Practical Implications
Advice memoranda are not binding precedent on the panel (Board) heading the judicial functions of the NLRB. However, they provide guidance to employers about the factors that determine whether the General Counsel's office will issue and prosecute a ULP complaint in various circumstances.
This advice memo provides guidance to employers contemplating firing an employee who uses Facebook to solicit participation in surveys and publishes results of those surveys on Facebook or other social media. The conclusion that the published allegedly defamatory statements were unprotected hinged on them not bearing on employment terms and conditions or the reputations of the employees' ability to work as judges. The advice memo provides no citation for the employee reputation element.
The finding that the employer lawfully refused to offer further work to the charging parties (assuming they were NLRA-covered employees) hinged on evidence of the employer's myopic focus on the potentially defamatory statements found not to be protected when it questioned and later punished the charging parties. The results likely would have been different if the purported employer punished the employees for conducting and publishing the survey without narrowing its criticism and punishment for the charging parties to their publishing comments that were completely unrelated to employment terms and conditions.