Why it matters

Affirming the National Labor Relations Board (NLRB), a panel of the Second Circuit Court of Appeals ruled that employees who "liked" a comment a former coworker made on social media criticizing the employer and posted a negative remark engaged in protected, concerted activity and their termination violated the National Labor Relations Act (NLRA). Triple Play Sports Bar and Grille had appealed the NLRB decision, arguing that the social media conversation between current and former workers was defamatory (one comment referred to a manager as an "asshole") and was likely viewed by customers. But in a non-precedential summary order, the Second Circuit said the social media interactions were just workers talking about labor issues. The panel wrote that the "discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the cook's] 'like' or [the bartender's] statement could evaluate the message critically in light of that dispute." An opposite conclusion could chill virtually all employee speech online, the court added, while affirming the NLRB's decision "accords with the reality of modern-day social media use." The Second Circuit declined Triple Play's request to publish the decision or make it precedential, however.

Detailed discussion

What began as a conversation on social media between two current employees of Triple Play Sports Bar and Grille and a former employee led to years of litigation. Jamie LaFrance, a former employee at the bar, posted a status update that 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. A second current employee, Jillian Sanzone, commented: "I owe too. Such an asshole." When the owners of the restaurant learned about the social media conversation, they discharged Sanzone, telling her that she was not loyal enough to be working at the restaurant because of her comment. As for Spinella, he was terminated because he liked the "disparaging and defamatory" comments and it was "apparent" that he wanted to work somewhere else.

Spinella and Sanzone filed a charge with the National Labor Relations Board (NLRB) and both an administrative law judge and a three-member panel sided with the employees, finding they were illegally discharged in violation of the National Labor Relations Act (NLRA).

The employer appealed. Triple Play first argued that the employees' social media activity removed itself from protection under the NLRA because the conversation contained obscenities that were viewed by customers, citing to a 2012 decision from the Second Circuit in NLRB v. Starbucks. In that case, comments made by employees were not subject to protection from the Act because obscenities were uttered in the presence of customers.

But the Second Circuit Court of Appeals said the logical extension of the employer's position "could lead to the undesirable result of chilling virtually all employee speech online. Almost all [social media] posts by employees have at least some potential to be viewed by customers. Although customers happened to see the [social media] discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer's brand. The Board's decision that the [social media] activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use."

Spinella's and Sanzone's communications—made to seek and provide mutual support looking toward group action—were not made to disparage Triple Play or to undermine its reputation, the panel added. "The [social media] discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw Spinella's 'like' or Sanzone's statement could evaluate the message critically in light of that dispute."

The court rejected the employer's argument that Sanzone's comment was malicious and false because she knew that Triple Play had not made an error on her own tax withholding.

"Although Sanzone may not have believed that Triple Play erroneously withheld her taxes, that has no bearing on the truth of her statement 'I owe too' or her conceivable belief that Triple Play may have erroneously withheld other employees' taxes," the panel explained. "It is certainly plausible that Sanzone truly owed taxes, even if that was not the result of an error on Triple Play's part—and even if other employees' claims regarding erroneous tax withholdings later proved inaccurate, such inaccuracies by themselves do not remove the statement from the protection of the Act."

The panel also upheld the NLRB's conclusion that Triple Play's Internet and blogging policy violated Section 8(a)(1) of the NLRA by reasonably tending to chill employees in the exercise of their Section 7 rights under the statute.

To read the summary order in Three D v. National Labor Relations Board, click here.