Enter to open, tab to navigate, enter to select
Facebook Complaints about Supervisor Were Concerted and Protected; Employer Cannot Claim Entrapment: NLRB
Practical Law Legal Update 6-526-4865 (Approx. 6 pages)
Facebook Complaints about Supervisor Were Concerted and Protected; Employer Cannot Claim Entrapment: NLRB
by PLC Labor & Employment
| Published on 25 Apr 2013 • USA (National/Federal) |
In Design Technology Group LLC dba Bettie Page Clothing, the National Labor Relations Board (NLRB) found that employees' complaints about their supervisor on Facebook were protected concerted activity for which the employer unlawfully terminated the employees. The NLRB rejected a defense that the Facebook posts constituted entrapment.
Key Litigated Issue
In Design Technology Group LLC dba Bettie Page Clothing, the key litigated issues were whether:
- Employees' complaints about a supervisor on Facebook were protected concerted activity.
- An employer can rely on an entrapment defense by showing that employees criticized their supervisor on Facebook to bait the employer to fire them.
Background
Bettie Page is a wholesale and retail clothing sales corporation. After a continuing dispute with a store manager about the closing time of a store in a reputedly unsafe area, three employees, Thomas, Morris and Johnson, posted several messages on Facebook complaining about the store manager's conduct. The employees also agreed that the next day Morris would bring to work a California worker's rights book for the employees to review. A different employee at the store, who was friends with the store manager, showed the manager the Facebook posts. The manager reported the incident and sent copies of the posts to upper-level management.
A few days later, the store manager summoned Thomas and Morris to her office and fired them because "things were not working out." The store manager testified that after she fired Thomas and Morris they were giggling, smiling and hugging. After the terminations, Morris posted more comments on Facebook, including the following:
Nooooo they fired me and my assistant manager because "it just wasn’t working out" we both laughed and said see yaaaaah and hugged each other while giggling ... Muhahahahaha!!! "So they've fallen into my crutches"
Approximately one month later, the store manager also fired Johnson. Morris filed an unfair labor practice (ULP) charge with the NLRB. Bettie Page contended that Morris' posting shows that the Facebook posts constituted a setup by the employees to be discharged.
On April 27, 2012, an NLRB Administrative Law Judge (ALJ) found that the employer unlawfully:
- Discharged Morris, Thomas and Johnson for engaging in protected concerted activity, both in the workplace and on Facebook.
- Maintained a rule that forbids employees from disclosing wages and compensation to each other or to any third party.
The parties appealed the ALJ's decision by filing exceptions and cross-exceptions to the panel (Board) heading the NLRB's judicial functions.
Outcome
In a unanimous decision dated April 19, 2013, a three-member panel of the Board affirmed the ALJ's ruling, holding that Bettie Page violated Section 8(a)(1) of the NLRA by:
- Discharging Thomas, Morris, and Johnson for engaging in protected concerted activity both in the workplace and on Facebook.
- Maintaining a "Wage and Salary Disclosure" rule in its handbook prohibiting the disclosure of wages or compensation to any third party or other employee.
In reaching its holding, the Board reasoned that:
- Thomas and Morris were engaged in protected concerted activity when they presented the concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the owner, and that their Facebook postings were a continuation of that effort.
- The Facebook postings were protected concerted activity in and of themselves. The postings were complaints among employees about their supervisor's conduct and related to terms and conditions of employment. The employees' discussion about looking at a book on worker's rights in California to determine whether Bettie Page was violating labor laws was classic concerted protected activity for mutual aid and protection.
- The ALJ correctly rejected Bettie Page's discharge conspiracy theory. Bettie Page contended that the Facebook postings were not protected because the employees had "no honest and reasonable belief" that the purpose of their conduct was for the mutual aid and protection of employees, and that instead, the employees "schemed to entrap their employer into firing them." The ALJ correctly found the conspiracy theory was "nonsensical" and not supported with credible evidence that the employees' actions were undertaken to entrap Bettie Page into committing a ULP.
- Even if the employees were acting in the hope that they would be discharged for their Facebook postings, Bettie Page failed to establish that the employees' actions were not protected by the NLRA.
- Credited evidence showed that the store manager who made the decision to discharge Johnson linked Johnson with Thomas and Morris and disapproved of their continued association.
- Bettie Page's explanation for firing Johnson, her tardiness, did not withstand scrutiny. Although Johnson was chronically tardy, other employees at the store were consistently late for work as well. In fact, despite widespread tardiness among employees, Bettie Page, prior to Johnson, had never discharged anyone at the store for lateness. Bettie Page failed to show that it would have terminated Johnson in the absence of her protected concerted activity and her perceived connection to other employees who had engaged in protected concerted activity.
Practical Implications
Employers that retaliate against employees for making Facebook complaints about terms and conditions of employment, including difficult supervisors, cannot rely on an entrapment theory of defense.