On October 21, 2015, the United States Court of Appeals for the Second Circuit issued a decision finding that Triple Play Sports Bar and Grille violated the National Labor Relations Act (“Act”) when it fired two employees for airing their criticisms on Facebook. This is the latest in a string of recent decisions finding that an employee’s online “speech” is protected concerted activity under the Act in some circumstances.
After discovering that some current and former employees owed additional state income taxes, a former Triple Play employee posted the following status on her Facebook account: “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!!!!”
A current employee “Liked” the status and another current employee commented on the status using an expletive to describe the employer. Triple Play fired the two current employees for participating in the Facebook discussion.
The Second Circuit Court of Appeals accepted the NLRB’s conclusion that the employees’ Facebook activity constituted protected concerted activity under Section 7 of the Act because it involved two or more employees and was “part of an ongoing sequence of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding.”
Triple Play argued that the employees’ Facebook activity lost the protection of the Act because it contained obscenities that were viewed by customers. However, the court agreed with the Board that the Facebook activity was not so disloyal or disparaging to Triple Play as to lose the protection of the Act.
The court also found that Triple Play’s Internet/Blogging policy, which discouraged employees from having “inappropriate discussions about the company, management, and/or co-workers,” violated the Act as employees could reasonably interpret it as proscribing any discussions about their terms and conditions of employment.
Other recent cases on this topic include Design Technology Group, LLC, 359 NLRB No. 96 (2013) and Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012).
Given the NLRB’s current enforcement position on this issue, employers should carefully review their social media policies and seek legal counsel before disciplining employees based on social media activity.