Tuesday, October 27, 2015

2nd Circuit Court Finds Employee's Facebook "Like" Protected Concerted Activity


A National Labor Relations Board ("NLRB") decision from last summer made headlines when it was found that an employee who was fired after "Liking" a coworker's Facebook status amounted to a violation of Section 8(a)(1) of the National Labor Relations Act ("NLRA") and that the same employer further violated the NLRA by maintaining an over-broad Internet/Blogging policy.  Now, the Court of Appeals for the Second Circuit has affirmed the Board's decision in Three D, LLC d/b/a Triple Play Sports Bar and Grille vs. NLRB.  

As a quick rebuffer, Section 7 of the NLRA 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...."  Section 8(a)(1) of the NLRA protects employees' Section 7 rights by prohibiting an employer from "interefer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7]...."

Given the facts in the case, the 2nd Circuit also reminds us that, "[a]n employees Section 7 rights must be balanced against an employer's interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business.  Accordingly, an employee's communications with the public may lose the protection of the Act if they are sufficiently disloyal or defamatory."  This was important as some of the other angry "comments" contained profanities and defamatory statements about Triple and Triple’s owners.

At issue in the case was an employee's (Vincent Spinella) "Like" of another employee's (LaFrance's) Facebook status:  "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!!!!"; and an employee's ( Jillian Sanzone) comment stating, "I owe too.  Such an asshole."  The administrative law judge and the Board agreed that the Facebook activity in this case was "concerted" under the standard set forth in Meyers Industries, 281 NLRB 882, 887 (1986), because it involved four (4) current employees and was "part of an ongoing sequence of discussions that began in the workplace about [Triple Play's] calculation of employees' tax withholding."

After finding that Sanzone's and Spinella's Facebook activity constituted protected concerted activity, the Court stated that the only remaining question before the Board was whether that Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA.  The Court find that their activity did not lose the protection of the NLRA because, applying Jefferson Standard, "the comments at issue did not even mention [Triple Play]'s products or services, must less disparage them."

The 2nd Circuit also discussed and clearly recognizes how social media is used these days in shooting down Triple Play's argument that the employees lost protection of the NLRA because the Facebook discussion took place "in the presence of customers" as the Court noted that such a holding could "lead to the undesirable result of chilling virtually all employee speech online.  Almost all Facebook posts by employees have at least some potential to be viewed by customers. ...  The Board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use."

Triple Play's Internet/Blogging Policy

The NLRB in very recent years has been taking aim at employers' use of policies that govern an employee's use of social media as many were found to violate Section 8(a)(1) of the NLRA.  That was exactly the case here.

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees in the exercise of their Section 7 rights.  Lafayette Park Hotel, 326 NLRB 824, 825, enfd. 203 F.3d 52 (D.C. Cir. 1999).  If the rule explicitly restricts activities protected by Section 7, then it is unlawful.  NLRB v. Martin Luther Mem'l Home, Inc. d/b/a/ Lutheran Heritage Village--Livonia, 343 NLRB 646, 646 (2004).  However, if the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following:  (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights."  Id. at 647.

Triple Play's rule did not explicitly restrict the exercise of Section 7 rights, nor was it promulgated in response to union activity, nor was applied to restrict Section 7 rights.  Thus, the issue then was whether "employees would reasonably construe the language to prohibit Section 7 activity," which the Board and the Court found that it did.  The Board held that under this rule, "employees would reasonably interpret [Triple Play]'s rule as proscribing any discussions about their terms and conditions of employment deemed 'inappropriate' by [Triple Play."

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