Why it matters: According to a three-member panel of the National Labor Relations Board (NLRB), an employee who “liked” a comment a former coworker made on Facebook criticizing her employer was engaging in protected, concerted activity – and therefore, she was illegally discharged in violation of the National Labor Relations Act (NLRA). The Board also said the employer’s Internet/Blogging policy violated the Act, finding it “sufficiently imprecise” that employees would reasonably believe it encompassed protected discussions. The lesson for employers? Use caution with regard to employees and social media activity and be forewarned that the NLRB is keeping a close eye on employer policies, see here.

Detailed Discussion

A conversation on Facebook between two current employees of Triple Play Sports Bar and Grille and a former employee (among others) led to a significant ruling from the NLRB. .

Jamie LaFrance, a former employee at the bar, posted a status update which read: “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!!!” After several comments were made in response, current employee Vincent Spinella “liked” the initial status update. Another current employee, Jillian Sanzone, commented: “I owe too. Such an asshole.”

The owners of the restaurant learned about the Facebook conversation and discharged Sanzone when she reported to work two days later, telling her that she was not loyal enough to be working there because of her comment. Spinella was called into a meeting with the owners, who terminated him because he liked the “disparaging and defamatory” comments, and it was “apparent” that he wanted to work somewhere else.

Triple Play’s owners did not dispute that the Facebook activity was concerted or that the employees engaged in protected activity. Rather, they took the position that Sanzone and Spinella lost the protection of the NLRA by adopting the former employee’s allegedly defamatory and disparaging comments.

Noting that the Facebook discussion “clearly disclosed the existence of an ongoing labor dispute concerning [Triple Play’s] tax-withholding practices,” the three-member panel said the evidence did not establish that the employees’ participation was directed to the general public.

“The comments at issue were posted on an individual’s personal page rather than, for example, a company page providing information about its products or services,” the panel wrote. “Although the record does not establish the privacy settings of LaFrance’s page, or of individuals other than Sanzone who commented in the discussion at issue, we find that such discussions are clearly more comparable to a conversation that could potentially be overheard by a patron or other third party,” and not clearly directed at the public.

Further, the comments at issue did not even mention Triple Play’s products or services, “much less disparage them,” the Board said. “Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.”

Therefore, the actions of Spinella and Sanzone did not lose the protections of the Act, and their discharge violated it, the panel wrote. A majority of the panel additionally concluded that Triple Play’s Internet/Blogging policy also violated the NLRA, as it frowned upon “engaging in inappropriate discussions about the company, management, and/or co-workers.” The rule lacked illustrative examples for employees about what Triple Play considered “inappropriate,” the Board said, and “employees would reasonably interpret [the policy] as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by [Triple Play].”

One Board member disagreed, writing that the policy did not expressly or implicitly restrict protected activity under the Act and that it was not applied illegally, as Sanzone and Spinella were discharged for their allegedly disloyal and defamatory actions and not for violating the policy.

The panel ordered Triple Play to refrain from future violations of the NLRA, revise its Internet/Blogging policy, offer Sanzone and Spinella their jobs back, and make them whole for any loss of earnings.

To read the NLRB’s decision, click here.