<i>Triple Play</i> Status Update: Firings for Employees' Facebook Activity Unlawful

The court further held that the employees' comments were not so disloyal as to lose the Act's protection, because the remarks did not even mention Triple Play's products or services, let alone disparage them. Moreover, the remarks were not “maliciously untrue” and thus not defamatory of Triple Play.

Triple Play also argued that the Facebook activity was not protected because it contained obscenities that were viewed by customers online. It relied on an earlier case in which a Starbucks employee cursed loudly in front of customers. The court rejected the comparison and explained that nearly “all Facebook posts by employees have at least some potential to be viewed by customers.” Further, although customers happened to see the exchange on Facebook, the employees' discussion was not directed toward them and did not reflect Triple Play's brand. The court concluded that to rule otherwise could chill “virtually all employee speech online.”

Last, the court agreed with the NLRB that Triple Play's Internet/Blogging policy tended to chill the employees' exercise of Section 7 rights. Among other things, the policy broadly prohibited “inappropriate discussions about the company, management, and/or co-workers.” Because employees would reasonably interpret the policy as prohibiting discussions about the terms and conditions of their employment that Triple Play could deem “inappropriate,” the policy violated the Act.

In light of these complicated social media issues and the NLRB's focus on employer policies, employers should consult with experienced labor and employment counsel to minimize their risk of liability under the National Labor Relations Act.

' E. Fredrick Preis, Jr.; Rachael Jeanfreau

'

On Oct. 21, 2015, the United States Court of Appeals for the Second Circuit affirmed a 2014 decision by the National Labor Relations Board (NLRB) overturning the terminations of two employees who had complained about their employer on Facebook. As previously reported, the NLRB concluded that the terminations violated the employees' Section 7 rights under the National Labor Relations Act (NLRA), because their Facebook activity was legally protected. (In a Facebook status, one employee had complained about Triple Play's failure to properly withhold payroll taxes, and a co-worker had “liked” the post). See “Recent NLRB Actions Force Employers to Change Established Policies and Practices,” The Corporate Counselor , February 2015, available at http://bit.ly/1RSwmZ3.

Section 7 of the NLRA protects employees who engage in concerted activity for the purpose of mutual aid or protection, and Section 8 of the Act prohibits employers from terminating employees who exercise their Section 7 rights. However, there are limits to these rights, and concerted activity may lose the Act's protection if it exceeds certain bounds, for example if the activity was so disloyal or defamatory that it is no longer protected.

In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB, Nos. 14-3284 and 14-3814, 2015 WL 6161477 (2d Cir. Oct. 21, 2015), the Second Circuit held that the employees' conduct was protected concerted activity under Section 7 of the NLRA, because the discussion pertained to workplace complaints about tax liability, withholding calculations, and back wages, and the discussion occurred between several employees as part of an “ongoing dialogue among employees about tax withholding.”

The court further held that the employees' comments were not so disloyal as to lose the Act's protection, because the remarks did not even mention Triple Play's products or services, let alone disparage them. Moreover, the remarks were not “maliciously untrue” and thus not defamatory of Triple Play.

Triple Play also argued that the Facebook activity was not protected because it contained obscenities that were viewed by customers online. It relied on an earlier case in which a Starbucks employee cursed loudly in front of customers. The court rejected the comparison and explained that nearly “all Facebook posts by employees have at least some potential to be viewed by customers.” Further, although customers happened to see the exchange on Facebook, the employees' discussion was not directed toward them and did not reflect Triple Play's brand. The court concluded that to rule otherwise could chill “virtually all employee speech online.”

Last, the court agreed with the NLRB that Triple Play's Internet/Blogging policy tended to chill the employees' exercise of Section 7 rights. Among other things, the policy broadly prohibited “inappropriate discussions about the company, management, and/or co-workers.” Because employees would reasonably interpret the policy as prohibiting discussions about the terms and conditions of their employment that Triple Play could deem “inappropriate,” the policy violated the Act.

In light of these complicated social media issues and the NLRB's focus on employer policies, employers should consult with experienced labor and employment counsel to minimize their risk of liability under the National Labor Relations Act.

' E. Fredrick Preis, Jr.; Rachael Jeanfreau

'