Second Circuit Decision Upholds N.L.R.B Ruling On Protected Social Media Activity

A recent decision by the Second Circuit Court of Appeals may cause employers to think twice about disciplining employees for their social media activity. In Three D, LLC v. N.L.R.B., No. 14-3284, 2015 WL 6161477 (2d Cir. Oct. 21, 2015) the court affirmed a decision of the National Labor Relations Board (“NLRB” or “Board”), which ruled that two restaurant employees were wrongfully terminated for participating in a Facebook discussion about workplace concerns.

Background of Dispute

The Facebook discussion commenced after a former employee of the Triple Play Sports Bar and Grille (whose conduct was not at issue) determined that she owed income taxes to the State of Connecticut, apparently as a result of the restaurant’s tax withholding practices. The former employee posted a status update to her Facebook page 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!!!!” Thereafter, Triple Play employee Vincent Spinella “liked” the status update. Fellow employee Jillian Sanzone posted a comment stating, “I owe too. Such an asshole.” Spinella and Sanzone were promptly fired as a result of their participation in this discussion.

The NLRB found that Triple Play violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) by discharging Spinella and Sanzone for their Facebook activity. Specifically, the Board determined that Spinella’s and Sanzone’s online communications constituted protected concerted activity because they were part of an ongoing sequence of discussions that began in the workplace about tax liabilities, tax withholding calculations, and back wages. The Board also found that Triple Play violated Section 8(a)(1) of the Act by maintaining an overbroad Internet/Blogging policy. Triple Play appealed. On October 21, 2015, the Second Circuit Court of Appeals affirmed the NLRB’s decision.

Applicable Law

Section 7 of the NLRA guarantees that “[e]mployees shall 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….”29 U.S .C. § 157. Section 8(a)(1) of the Act protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7]….”29 U.S.C. § 158(a)(1).

As the Second Circuit recognized, an employee’s Section 7 rights must be balanced against an employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business. Accordingly, an employee’s communications with the public may lose the protection of the Act if they are sufficiently disloyal or defamatory, or if they amount to criticisms disconnected from any ongoing labor dispute.

Second Circuit Decision Affirming NLRB Ruling

In the appeal to the Second Circuit, Triple Play argued that because Spinella’s and Sanzone’s Facebook activity contained obscenities that were viewed by customers, the Board should have found that this activity lost the protection of the Act under Second Circuit precedent, which “strongly suggested” that an employee’s obscenities uttered in the presence of customers would not be protected. The court rejected this argument and distinguished earlier cases. Although customers happened to see the Facebook discussion at issue, the court concluded that the discussion was not directed toward customers and did not reflect the employer’s brand. The court also observed that allowing an employer to restrict any Facebook discussion “in the presence of customers” could lead to the “undesirable result of chilling virtually all employee speech online,” because all Facebook posts by employees have at least some potential to be viewed by customers.

The court also rejected Triple Play’s argument that Sanzone’s comment was defamatory (and thus not protected under the Act) because she knew that the restaurant did not make any errors with respect to her income tax withholdings. The court held, instead, that Sanzone’s communications “were made to seek and provide mutual support looking toward group action,” and not “to disparage Triple Play or undermine its reputation.” The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus the court determined that “anyone who saw [the discussion] could evaluate the message critically in light of that dispute.”

Internet/Blogging Policy

The Second Circuit’s decision also contains an important message on employer social media policies.

As discussed in an earlier post, the NLRB takes an expansive view of an employee’s right to engage in concerted activity and deems unlawful even well-intentioned employee handbook rules that might infringe upon that right. Recently, the NLRB has targeted workplace rules that do not explicitly restrict the exercise of Section 7 rights, but which employees would reasonably construe to prohibit protected concerted activity. The Second Circuit’s decision in the Triple Play case is deferential to the NLRB’s view.

Triple Play’s employee handbook contained the following provision under the heading “Internet/Blogging Policy.”

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the Company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The court affirmed the Board’s finding that employees would reasonably interpret this rule as proscribing any discussions about their terms and conditions of employment that Triple Play deemed “inappropriate,” and thus concluded that the policy was overboard.

Take Away for Employers

The Second Circuit’s decision is based on a highly specific set of facts and does not compel the conclusion that employees enjoy legal protection for any work-related discussion on social media. Nonetheless, employers should take note that the NLRB has adopted an employee-friendly view of these issues in the past, and this decision supports that view.

MICHAEL J. ROSSI

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2017-01-13T17:16:07+00:00 October 29th, 2015|Categories: Human Resources Compliance, Michael J. Rossi, NLRB|0 Comments

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