By: Chauna Pervis

On October 21, 2015, the Second Circuit held that three employees’ Facebook status, “like,” and comment about their employer constituted protected concerted activity under § 7 of the National Labor Relations Act (“NLRA”), and therefore, the employer violated the Act by discharging the employees.[1] The Court also held that the employer’s Internet/Blogging Policy violated the NLRA’s § 8(a)(1) because it was overbroad, and thus had the potential to “chill employees in the exercise of their § 7 rights.”[2]

The Court analyzed the interaction between three Triple Play employees LeFrance, Spinella, and Sanzone on Facebook.[3] LaFrance updated his status to “Maybe someone should do the owners of Triple Play a favor and buy it from them.[4] They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!”[5] Spinella then “liked” the status and Sanzone commented on the status stating, “I owe too. Such an asshole.”[6] Triple Play subsequently interrogated the employees about this interaction and ultimately discharged them because of it.[7] During the course of their employment, Triple Play had an Internet/blogging policy.[8] The National Labor Relations Board (“NLRB”) found that the employees’ Facebook interaction qualified as protected activity under § 7 and therefore Triple Play violated § 8(a)(1) by discharging the employees for that interaction.[9] Furthermore, the NLRB found that Triple Play was also in violation of § 8(a)(1) because its Internet/blogging policy was overbroad.[10] Triple Play appealed to the Second Circuit.[11]

Section 7 grants employees protection when they engage in activity for “mutual aid and protection” that concerns “terms and conditions of employment.”[12] However, courts balance an employee’s § 7 rights against an employer’s interest in preventing disparagement of its business and protecting the business’s reputation.[13] Furthermore, § 8(a)(1) of the NLRA prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7].”[14]

The Second Circuit upheld NLRB’s findings, taking into account the reality of modern-day social media use.[15] Triple Play argued that the employees’ speech was not protected because the discussion took place in the presence of customers.[16] The Court acknowledged that an employer “has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation,” but nonetheless found that employees’ online speech would be significantly limited if it adopted Triple Play’s stance since almost all of employees’ Facebook posts have potential to be viewed by customers.[17] Therefore, the Court held that taking such a stance “could lead to the undesirable result of chilling virtually all employee speech online.”[18]

The Court adopted the NLRA’s reasoning that the employees’ Facebook activity was protected because the activity concerned a discussion about “workplace complaints about tax liabilities, [Triple Play’s] tax withholding calculations, and LaFrance’s assertion that she was owed back wages.”[19] The Court acknowledged that the Facebook comments may have an effect on the customers who viewed them; however, it held that such comments concerned the terms and conditions of the employees’ employment and were therefore protected.[20] Furthermore, the Court upheld the NLRB’s finding that Triple Play’s Internet/blogging policy violated § 8(a)(1) because it was overbroad and thus could cause employees to believe that they could not exercise their § 7 rights.[21]

While the Second Circuit’s decision provides for protection for employees comments in this modern age, it leaves employers vulnerable to the far-reaching powers of social media. Displeased employees and patrons alike often turn to social media like Facebook to raise awareness about their concerns by verbally attacking an employer or inciting a boycott. When negative comments about an employer are posted on social media, like Facebook, they have the power to be seen by many people in a short period of time and therefore may have a significant negative effect on the employer.

 

[1] Three D, LLC v. NLRB, Nos. 14-3284, 2015 WL 6161477, at *1 (2d Cir. Oct. 21, 2015).

[2] Id. at *5.

[3] See Id. at *2

[4] Id.

[5] Id.

[6] Id.

[7] Id. at *4.

[8] Id. at *4 (details of policy not given).

[9] Id. at *1

[10] Id.

[11] Id.

[12] 29 U.S.C. § 157 (2012).

[13] Three D, 2015 WL 6161477, at *1 (citing Valley Hosp. Med. Ctr, Inc., 351 NLRB 1250, 1252-53 (2007).

[14] Id. (citing 29 U.S.C. § 158(a)(1)).

[15] Id. at *3.

[16] Id. at *2.

[17] Id. at *3.

[18] Id.

[19] Id. at *2.

[20] Id. at *3.

[21] Id. at *4.