Court Affirms NLRB’s Protection of Employee Facebook Postings Slamming Employer

October 28, 2015 by Andrew Baker

A federal court of appeal has affirmed an NLRB decision that held that an employee’s complaints about the workplace posted to social media could constitute protected action under Section 7 of the NLRA, even if the posting uses profanity.  In the case, the Triple Play sports bar fired two employees for posting and “liking” comments on Facebook that criticized the bar’s tax withholding practices.  Even if the bar’s customers saw the comments and obscenities contained in the post, the Court reasoned that almost all social media posts “have at least some potential to be viewed by customers” and that strong language “accords with the reality of modern-day social media use.”

The decision addressed two Facebook activities: (1) one employee’s “like” of another employee’s initial status update (“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!!!!”); and (2) a third employee’s comment stating, “I owe too.  Such an asshole.”  The Board concluded that, “in the context of the ongoing dialogue among employees about tax withholding,” the discharged employees had engaged in concerted activity by endorsing another employee’s claim that their employer had erred in her tax withholding.

The Board next concluded that the discharged employees’ Facebook activities were not so disloyal as to lose protection of the NLRA because “[t]he comments at issue did not even mention [Triple Play]’s products or services, much less disparage them.”  The Board further concluded that Triple Play failed to meet its burden under labor law standards to establish that the comments at issue were defamatory because there was no basis for finding that the employees’ claims were maliciously untrue.

The Court agreed with the Board’s conclusion that the fact that Triple Play customers viewed the Facebook discussion did not render the employees’ Facebook activities unprotected.  In so concluding, the Board and Court emphasized that the discussion was not directed toward customers and did not reflect on the employer’s brand.

Finally, in a refreshing example of a Court recognizing the realities of the current world, the Court noted:  “The Board’s decision that the Facebook 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.”

The case is Three D, LLC d/b/a Triple Play Bar v. NLRB (2d Cir. Oct. 21, 2015).

 

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