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