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Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case

The NLRB last week filed its brief at the Second Circuit Court of Appeals in the well-publicized Facebook “Like” firing case, Three D, LLC v. NLRB.  Prior to the appeal, we discussed the NLRB’s August 2014 ruling here as part of a broader discussion of the Board’s recent crackdown on employers’ “overbroad” social media policies.  The Second Circuit’s forthcoming decision will be one of the first appellate court decisions to weigh in on the NLRB’s expansive view on employee rights under the National Labor Relations Act in the social media context.

By way of background, in 2011, some current and former employees of a Connecticut watering hole, Triple Pay Sports Bar and Grille, discovered that they owed additional state income tax, allegedly due to Triple Play’s failure to withhold sufficient payroll taxes.  A former employee posted on 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!!!!”  In response to that posting, several angry comments were posted by current and former Triple Play employees as well as Triple Play customers, some of which contained profanities and defamatory remarks.  For example, one comment alleged that one of the bar owners “[f’]d up the paperwork … as per usual.”  Another comment from a former employee alleged about the owner: “Hahahaha he’s such a shady little man.  He prolly pocketed it all from all our paychecks.”  Jillian Sanzone, employed by Triple Play at the time as a bartender and waitress, commented: “I owe too.  Such an a**hole.”  Another current employee, cook Vincent Spinella, clicked the “Like” button as to the original posting from the former employee.  Triple Play promptly fired Sanzone and Spinella, and made no secret that they were fired because of their Facebook activity.

The NLRB found that Triple Play violated the NLRA by terminating the two employees for participating in the Facebook discussion criticizing the employer’s failure to withhold the proper amount of state income tax from their paychecks.  Triple Play argued that the employees’ conduct, including using profane language to criticize one of the owners, was so disloyal that they forfeited the NLRA’s protections.  The Board disagreed that the employees’ comments were maliciously untrue and concluded that the communications were protected concerted activity because the purpose of the conversation was to “seek and provide mutual support looking toward group action to encourage the employer to address problems in terms and conditions of employment, not to disparage its product or services or undermine its reputation.”  The Board conceded that “Liking” is “more ambiguous,” but contrary to Triple Play’s contention that Spinella was expressing agreement with the entire Facebook conversation—including the profane comments—that preceded his “Like,” Spinella’s “Like” was only meant to express agreement with the original posting.

In addition, consistent with several recent Board cases, the NLRB held that Triple Play’s “Internet/Blogging” policy discouraging online communications involving “confidential or proprietary information about the Company, or … inappropriate discussions about the company, management, and/or co-workers” was vague and overbroad, and therefore violated the NLRA.  The policy’s savings clause stating that it had “no force or effect” to the extent it was precluded by state or federal law was not persuasive to the NLRB.  The Board determined that the policy violated the NLRA because employees could reasonably interpret it as “proscribing any discussions about their terms and conditions of employment [that the employer] deemed ‘inappropriate.’”

Triple Play appealed the NRLB’s ruling in September.  In its January appellate brief, Triple Play argued that the Board disregarded Second Circuit precedent (the 2012 decision in NLRB v. Starbucks) involving an employee’s obscenity-laced outburst in front of customers during a protest of a policy concerning wearing union pins on work uniforms.  In its brief filed last week, the Board distinguished the Starbucks case on the grounds that it involved an on-premises workplace confrontation and not, as in Triple Play, statements made off-site in a social media discussion.

Before the Second Circuit are several fascinating issues for employers, including: (1) whether the employees’ Facebook conduct was egregious enough to lose legal protection as protected concerted activity; (2) whether “Liking” a posting deserves protection (as an aside, what if Spinella had “Liked” one of the more defamatory comments as opposed to the original posting?); and (3) whether Triple Play’s social media policy prohibiting “inappropriate” discussions passes muster.  As noted above, while the NLRB has spoken on these issues in a decidedly pro-employee manner over the past few years, appellate courts (until now) have not had occasion to weigh in.  We will closely monitor proceedings before the Second Circuit.

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David Katz