Second Circuit Court of Appeals Sides with NLRB on Facebook Firings

By: Megan J. Muoio, November 25, 2015

On October 21, 2015, the Second Circuit Court of Appeals upheld a decision by the National Labor Relations Board (NLRB) finding that two employees were improperly fired because of negative discussion of their employer on the social media site Facebook. The employees were non-union employees at the Triple Play Sports Bar and Grille located in Watertown, Connecticut.

In the case before the NLRB, Three D, LLC (Triple Play) was found to have illegally fired two employees in connection with Facebook complaints about Triple Play’s tax withholding practices. A former employee started a Facebook discussion by addressing the employer’s issues with tax withholding in a status update, which was “liked” by a current Triple Play employee. A second Triple Play employee commented in response to the discussion and used profanity to refer to the employer. Both the employee who commented and the one who merely “liked” the former employee’s status update were fired.

The NLRB found that both the “like” and the comment in response to the former employee’s status update were protected concerted activity under Section 7 of the National Labor Relations Act (NLRA), which made Triple Play’s termination unlawful. The NLRB clarified the standard by which alleged disloyal comments made by an employee about an employer in the employee’s off-duty time will be reviewed to determine whether they fall outside the NLRA’s protection. Disloyal comments are those that are disparaging to the employer and are not connected to any ongoing labor dispute. Both disloyal and defamatory comments would not be protected by Section 7. In the Tripe Play case, the NLRB found that the comments were neither disloyal nor defamatory. The NLRB also easily concluded that a Facebook “like” could be protected concerted activity under the NLRA.

Further, the NLRB held that the employer’s handbook contained an overly-broad social media policy. The policy stated that employees were prohibited from “engaging in inappropriate discussions about the company, management, and/or co-workers,” which the NLRB found unreasonably chilling on employees’ rights under Section 7 of the NLRA.

On appeal to the Second Circuit, Triple Play challenged the NLRB’s conclusion that the employee’s Facebook comment was not disloyal or false. Triple Play did not challenge the NLRB’s conclusion that a Facebook “like” constituted protected concerted activity under the NLRA. Triple Play relied on NLRB v. Starbucks Corp., a 2011 case from the Second Circuit in which an employer was found to have lawfully terminated an employee who used obscenities during a pro-union protest that took place in the presence of customers. The Second Circuit distinguished the Starbucks case by finding that, although Triple Play customers may have had occasion to view the employees’ comments on Facebook, customers were not the target of the comments and Triple Play’s brand was not affected. The Second Circuit concluded that “the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers [which] accords with the reality of modern-day social media use.” The Second Circuit also found that Triple Play’s employee handbook policy regarding social media unreasonably chilled employee’s rights under Section 7 of the NLRA because it restricted employees’ ability to communicate regarding the terms and conditions of their employment.

In light of the Second Circuit’s ruling, employers should be mindful of several types of protected activity. A “like” or other positive indicator on social media is a protected activity under the NLRA. Also, an employee who uses obscenities and makes disparaging comments about an employer on social media, where the comments may be viewed by customers, could be protected by the NLRA if the primary objective is to exercise Section 7 rights. Finally, overly-broad social media policies in employee handbooks like that used by Triple Play will not be permitted. Employers should review their policies to ensure that they are intended to prohibit protected speech.