Wednesday, November 4, 2015

The Second Circuit “Liked” the NLRB’s Decision in the Facebook “Like” Firing Case.

Employers must tread carefully before disciplining employees for their Facebook activity. In Three D, LLC d/b/a Triple Play Sports Bar & Grille v. NLRB, ---Fed. Appx.---, 2015 WL 6161477, at *1 (2d Cir. Oct. 21, 2015) (Summary Order), the United States Court of Appeals for the Second Circuit affirmed a National Labor Relations Board (“NLRB”) decision which held that the employer violated the National Labor Relations Act (“NLRA”) when it discharged two workers for “liking” and commenting on a Facebook post regarding allegations of improper tax withholdings – i.e. terms and conditions of their employment. Id. at 3-4.

In January 2011, current and former employees of Triple Play Sports Bar & Grille (“Triple Play”) discovered that they owed more in Connecticut income taxes than they expected. Three D, LLC, 361 N.L.R.B. No. 31, at 2 (Aug. 22, 2014).[1] The employees expressed their frustrations regarding the alleged mishandling of their tax withholding to the employer, who scheduled a staff meeting for February with its payroll provider to discuss the employees’ concerns. Id. Before the scheduled meeting, a former employee, LaFrance, posted a status update to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” Id. at 2. An exchange followed which included profanity and negative comments about the workplace. Spinella, a Triple Play employee, liked LaFrance’s status update, and Sanzone commented “I owe too. Such an asshole.” Id. The co-owner learned about the Facebook discussion from his sister (who was Facebook friends with LaFrance) and fired Spinella and Sanzone. Id. at 3. Triple play made no secret that Sanzone and Spinella were fired because of their Facebook activity. In fact, when Sanzone asked why she was being discharged, Triple Play responded that she was not loyal enough to be working for them because of her Facebook comment. Id. The Board found that Triple Play violated the NLRA by discharging them for participating in the Facebook discussion, id. at 1, and the Second Circuit affirmed.

In its decision, the Second Circuit held that the Facebook activity was protected concerted activity under Section 7 of the NLRA[2] because it was part of an ongoing discussion that began in the workplace and concerned complaints about tax liabilities, Triple Play’s tax withholding calculations, and owed back wages. Three D, 2015 WL 6161477, at *2. The court also rejected Triple Play’s contention that the Facebook activity was so disloyal or disparaging as to lose protection under the Act. Specifically, the comments did not mention Triple Play’s products or services, and there was no basis for finding that the employees’ claims regarding improper tax withholdings were maliciously false. Id.

Triple Play argued that, even if the Facebook activity was protected, it lost its protection because it contained obscenities that were made “in the presence of customers.” Id. at 2-3. According to Triple Play, NLRB v. Starbucks, 679 F.3d 70 (2d Cir. 2012) stood for the proposition that an employee’s utterance of obscenities in the presence of customers would not be protected in most or all circumstances. Starbucks involved an employee’s obscenity laced outburst in front of customers during a protest of a policy concerning union pins on work uniforms. Starbucks, 679 F.3d, at 73-74. The court found Triple Play’s reliance on Starbucks misplaced. First, unlike in Starbucks, the Board unequivocally recognized Triple Play’s “legitimate interest in preventing the disparagement of its products or services and … protecting its reputation … from defamation,” when considering whether the Facebook activity was so disloyal or defamatory as to lose protection. Compare Three D, 2015 WL 6161477, at *3, with Starbucks, 679 F.3d, at 79. Second, the comments here were not directed at customers, and accepting Triple Play’s argument that the Facebook discussion took place “in the presence of customers” could potentially chill almost all employee online speech. Three D, 2015 WL 6161477, at *3.

In addition, the court held that Triple Play’s Internet/Blogging policy was unlawful under the NLRA. Id. at *4. The relevant provision is as follows:

[W]hen internet blogging, chat room discussion, e-mail, text messages, or other forms of communication extend to employee revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of your employment…

Three D, 361 N.L.R.B., at 8. According to the court, “employees would reasonably interpret [Triple Play’s] rule as proscribing any discussions about the terms and conditions of employment deemed inappropriate by [Triple Play].” Three D, 2015 WL 6161477, at *4.

In sum, Three D, LLC shows that simply “liking” a post regarding terms and conditions of employment is sufficient participation to constitute protected activity. The outcome may have been different if Spinella or Spanazo also “liked” or posted one of the more defamatory comments. But for now, the Second Circuit decision supports the Board’s rather broad view of employee social media rights. Importantly, employers must remember that the NLRA protects the rights of all employees, unionized or not, to engage in concerted activities for their mutual aid or protection. This includes discussions about wages, working conditions, and improper management practices. To avoid liability, employers should have their social media policies reviewed to ensure that they are not so broad as to reasonably be read to proscribe employee online discussions about the terms and conditions of their employment.

Written by Alex Kutrolli

We have also written about social media previously:

[1] Available at https://www.nlrb.gov/case/34-CA-012915.

[2] Section 7 of the Act guarantees that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of … mutual aid or protection …” 29 U.S.C. § 157. Section 8(a) of the Act protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7] …” 29 U.S.C. § 158(a)(1).

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