On October 22, 2015, the Second Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB) decision that Triple Play Sports Bar and Grille (Employer) violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it interrogated and discharged two employees for their Facebook activity.  The Second Circuit also affirmed the NLRB’s determination that the Employer’s Internet/Blogging policy violated Sect 8(a)(1) of the NLRA because it was overbroad, Three D, LLC v. National Labor Relations Board.

Section 7 of the NLRA guarantees that employees 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 prohibits employers from interfering with, restraining or coercing employees in the exercise of the rights guaranteed in Section 7.

On the other hand, employers have a right to prevent disparagement of their products or services and protect the reputation of their businesses.  Therefore, an employee’s communications may lose their protection under the NLRA if they are sufficiently disloyal or defamatory.  The NLRB and federal courts have held that communications are sufficiently disloyal if they are criticisms made to the public that are disconnected from any ongoing labor dispute and sufficiently defamatory if they are publicly made maliciously, meaning they are made with “knowledge of [their] falsity, or with reckless disregard of whether [they] are true or false.” 

In this case, a former employee, Jamie LaFrance, posted the following statement on Facebook: “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!!!!”  Vincent Spinella, a current employee, “liked” LaFrance’s Facebook statement, and Jillian Sanzone, also a current employee, commented to LaFrance’s statement by stating, “I owe too.  Such an a**hole.” 

The Employer discharged both Sanzone and Spinella.  When Sanzone asked why she was being discharged, the Employer told her the she was not loyal enough to work there because of her Facebook comment.  When Spinella reported for work the following day, the Employer confronted him with the Facebook discussion and interrogated him about his “like” of LaFrance’s statement.  The Employer discharged Spinella following the interrogation, telling Spinella that it was going to discharge anyone involved in the Facebook conversation for defamation.

The NLRB determined that the employees were engaged in protected concerted activity when they “liked” and commented on LaFrance’s Facebook statement.  The NLRB further held that the Employer violated Section 8(a)(1) of the NLRA when it discharged the employees for engaging in that activity.  The NLRB also found that the Employer’s Internet/Blogging policy violated Section 8(a)(1) of the NLRA because it was overbroad in that the language of the policy prohibiting “inappropriate discussions” could reasonably be interpreted by employees as a rule proscribing any discussions that are protected under the NLRA.

On appeal to the Second Circuit, the Employer argued that Spinella and Sanzone’s Facebook activity was not protected under the NLRA because it contained obscenities that were viewed by customers.  The Second Circuit noted that “almost all Facebook posts by employees have at least some potential to be viewed by customers;” and a holding that Facebook discussions would lose their protection because of the possibility that the discussion mightbe viewed by customers would “lead to the undesirable result of chilling virtually all employee speech online.”  The Second Circuit further noted that the Facebook discussion “clearly disclosed” an ongoing labor dispute, and anyone who viewed the comments could evaluate the message “critically in light of that dispute.”  Further, even though customers could see the Facebook discussion, the discussion was not directed toward the customers and did not reflect the Employer’s brand.  Therefore, the Second Circuit held that, although the posts were visible to customers and contained profanity, the Facebook discussion did not lose the protection under the NLRA, but instead was just “the reality of modern-day social media use.” 

In addition to finding the terminations and interrogations unlawful, the Second Circuit also agreed with the NLRB’s finding that the Employer’s Internet/Blogging policy was unlawful because employees would reasonably interpret the policy as prohibiting any discussions about their terms and conditions of employment that the Employer deemed inappropriate.

This case continues the NLRB’s expansive approach to evaluating Section 7 activity—including employee outbursts and the use of profanity—in the context of “modern-day” social media conduct.  Employers should continue to approach discipline and discharge of employees for such conduct very carefully and likewise should review their internet/blogging policies to ensure that they are not overbroad and unreasonable under these standards.