Ralph DelBuono and Thomas Daddona operate a bar and restaurant called Triple Play Sports Bar and Grille.  On January 2011, employees Jillian Sanzone and at least one other employee discovered that they owed more in State income taxes than they had expected.  Sanzone discussed this at work with other employees.  Jamie LaFrance, a former employee, posted the following message on her Facebook account: "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!!!!"  Numerous people commented on the posting.  Sanzone commented, "I owe too. Such an asshole."  Another employee, Vincent Spinella, "liked" the post.  Daddona learned of the posts through a mutual Facebook friend and he terminated Sanzone and Spinella's employment. 

Sanzone and Spinella filed an unfair practice charge with the National Labor Relations Board (Board).  An administrative law judge found that the Facebook discussion was protected concerted activity, and that Respondent unlawfully discharged Sanzone and Spinella for their protected Facebook posts.  Respondent appealed, and the Board affirmed. 

Section 7 of the NLRA, which applies to certain private employers, provides that employees have the right to act together to improve the terms and conditions of employment, including by using social media to communicate with each other and the public.  At the same time, online employee communications can implicate legitimate employer interests, including the right to maintain discipline in their establishments. 

The owners of the restaurant did not dispute that the employees' Facebook activity was concerted or protected, but argued that the employees lost the protection of the National Labor Relations Act (NLRA) by adopting LaFrance's disloyal or defamatory statements.  Employers have a legitimate interest in preventing the disparagement of their products or services and in protecting their reputations, but this interest must be balanced against employees' Section 7 rights. 

Here, the Board reasoned that Sanzone's comment and Spinella's "like" communicated an endorsement of LaFrance's complaint.  While other people made comments about the restaurant's owners pocketing money, neither Sanzone nor Spinella made these accusations.  They merely participated in an otherwise protected discussion in which other people made potentially unprotected statements.  Further, there was no evidence that Sanzone or Spinella's involvement was directed towards the public.  In sum, the Board found that their actions were not "so disloyal" as to lose the protection of the NLRA. 

The Board also found that the statements were not defamatory.  The restaurant had the burden of showing that the statements were maliciously untrue, and failed to meet this burden. 

Finally, the Board found that Respondent's social media policy violated the NLRA because it was overly broad.  The policy stated that employees may be subject to discipline for "engaging in inappropriate discussions about the company, management, and/or co-workers."  The term "inappropriate" was "sufficiently imprecise" so as to cause employees to believe that protected discussions and interactions were a violation of policy.  Therefore, the Board ordered Respondent to cease and desist from maintaining its Internet/Blogging policy, and to reinstate Sanzone and Spinella and make them whole.   

Note: 

This is a decision from the National Labor Relations Board regarding the National Labor Relations Act, which applies to private sector labor-management relations.  Although the NLRA is a private sector labor relations statute, it is often referenced by the California Public Employment Relations Board (PERB) and is used to interpret public sector labor relations statutes, such as the Meyers-Milias-Brown Act (MMBA) (Cal. Government Code section 3500 et. seq.).  Like the NLRA, the MMBA also prohibits interfering with the "concerted activities" of employees.  Thus, it is possible that PERB could determine that a Facebook post that comments on the working conditions at a public agency is "concerted activity" under the MMBA.  In addition, PERB may closely analyze policies that regulate Internet use, just as the ALJ did in this case.  Accordingly, public agencies are urged to carefully review their Internet policies and any potential disciplinary actions stemming from employee speech.

In addition, in our October 2013 Client Update, we reported on the case of Bland v. Roberts, 730 F.3d 368 (4thCir. 2013) in which the Fourth Circuit held that "liking" a Facebook page of a candidate for Sheriff was protected speech under the First Amendment.  We will continue to update you on this rapidly evolving area of employment law.

Three D, LLC d/b/a Triple Play Sports Bar and Grille (August 22, 2014) 361 NLRB No. 31.