Sometimes jokes fall flat. Sometimes they can get employers in trouble with the National Labor Relations Board (the “NLRB”). A recent case is a cautionary tale.
In responding to a story about workers for another company staging a walkout, Ben Domenech, an executive officer of FDRLST Media, tweeted the following from his personal Twitter account: “FYI: @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” An NLRB complaint ensued. Domenech asserted his post was satirical in nature. However, the NLRB did not agree.
The NLRA’s Protections
The National Labor Relations Act (the “Act”) preserves employees’ rights to unionize. As such, the Act prohibits employers from interfering, restraining, or coercing employees from exercising their rights. The legal test used to determine if an employer has violated the Act is: “Whether the statements or conduct have a reasonable tendency to interfere with, restrain or coerce union or protected activities.” Important aspects of the law applicable to this case are that an employer’s motive or success of its “threat” are not factors the court considers. Instead, courts apply a reasonable person standard. Simply put, the court’s legal query asks “whether the employer’s conduct, viewed from the perspective of a reasonable person, tends to interfere with the free exercise of employee rights.”
The Court’s Analysis
After explaining—in surprising yet enthralling detail—the meaning of “salt mine,” the Administrative Law Judge (“ALJ”) determined Domenech’s tweet violated the Act. Pointing to previous NLRB case law, the ALJ explained even threats made in a joking manner could violate the act. Notable to its case, FDRLST advanced affidavits from two employees who stated they found the post satirical and comedic in nature. The ALJ discounted these affidavits stating it was unclear why FDRLST chose those two specific employees and could not rule out FDRLST potentially threatened the employees to provide the statements.
The result of this case is notable because it shows how an employee’s social media post can land an employer in hot water—or in this case—the salt mine. Perhaps a simple “LOL” or a happy face emoticon would have changed things—but we’ll never know. Tips for employers to avoid such problems:
- Consider a social media policy. A carefully worded and effective social media policy allows an employer to minimize the risks associated with employee use of social media by proactively defining acceptable and unacceptable uses in the context of the employment relationship.
- Workplace training. Social media and NLRA trainings, specifically aimed at management, directors and officers, is an important tool in combatting situations such as these. In the FDRLST case, Domenech thought his comments were innocuous. Proper training would point out how such comments can be problematic. An educated workforce is a healthy workforce.
A tough crowd is a comic’s worst nightmare. Essentially, it is an audience that is impossible to please. One key take-away from this case is the NLRB is a tough crowd and not an audience you want to use to test your material.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
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