Every day people take to social media to vent frustrations with daily life. But what happens when employees use social media to blow off steam about their employer? This was the question that the Second Circuit Court of Appeals confronted in Three D, LLC v. National Labor Relations Board involving a Connecticut sports bar and its employees.
Fired Over Facebook Comments
In January 2011, at least two current and former employees of the Triple Play Sports Bar learned that they owed more in state income tax than they had expected. One former employee speculated on herFacebook page that this happened because the bar owner allegedly failed to properly complete tax paperwork. She wrote: “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!!!!” Vincent Spinella, a current employee, clicked the “Like” button on the post. Several other current and former employees responded with their own comments, including Jillian Sanzone, a bartender, who wrote: “I owe too. Such an a[**]hole.” The bar’s owner fired Sanzone and Spinella for their Facebook activity soon after discovering it.
The employees took their case to the National Labor Relations Board (NLRB), alleging that the bar’s owner violated their rights under the National Labor Relations Act (NLRA) to act collectively “to improve terms and conditions of employment or otherwise improve their lot as employees.” The NLRB ruled in favor of the employees, and the Second Circuit upheld that decision on appeal, ruling that their right to act together to improve their employment includes the right to use social media to communicate with one another or the public for that purpose.
Are Facebook posts protected concerted activity?
When an employee is terminated over their public comments, a court is forced to engage in a balancing act—the employees’ rights to act collectively to pursue improvements to their working conditions must be weighed against the employer’s interest in preventing disparagement of its products or services. How do we know which one weighs more heavily?
The nature of the discussion matters. In this case, the employees were found to be engaged in concerted action because the comments involved current employees and were “part of an ongoing sequence of discussions that began in the workplace about [the bar’s] calculation of employees’ tax withholding.” The Facebook discussion was protected because the topics included withholding and possibly being owed back wages, which can fairly be considered terms and conditions of employment. Also key to the Court’s reasoning was that although the discussion among employees was public and viewable by customers, there was no evidence that the discussion was targeted at customers. Moreover, although the alleged reason for the tax liability may have been inaccurate, the statements were not made maliciously, but as part of a good faith discussion of working conditions.
Wait . . . is “Liking” a Facebook post concerted activity?
Does the simple act of clicking the “Like” button on a message typed by another person rise to the level of engaging in a discussion to improve the terms and conditions of employment? Both the NLRB and the Appeals Court said yes. While a “Like” is somewhat ambiguous, in the context of an ongoing dialogue among employees about tax withholding Spinella’s “Like” was construed as an expression of approval of the initial post by the former employee.
Employees are not unconditionally entitled to communicate messages with the public that are disloyal or defamatory to their employer. Employers should recognize, however, that online discussions about the employees’ terms and conditions of employment might be protected even where they contain profanity, are negative toward the employer, or possibly inaccurate.
Employers can protect themselves by implementing clearly worded social media policies that cannot be construed to prohibit employees from discussing the terms and conditions of their employment.