NLRB “Unfriends” Employer Over Facebook “Like”

by BakerHostetler

On August 25, the National Labor Relations Board found in Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone, Case No. 34-CA-012915, and Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Spinella, Case No. 34-CA-012926, that an employer had violated federal labor law by terminating an employee who had “liked” a former co-worker’s negative comment about the employer posted on Facebook. The Board also ruled that the employer violated the National Labor Relations Act (“NLRA” or the “Act”) by firing another employee for posting an expletive-laced comment about the employer in response to the former co-worker’s comment, and it found that the employer’s “Internet/Blogging” policy banning “inappropriate discussions” regarding the company unlawfully chilled employees’ exercise of their right to engage in protected, concerted activity under the Act.

The employer (“Triple Play”) is a sports bar in located in Connecticut. In January 2011, Jillian Sanzone, a waitress/bartender, was one of several employees who discovered that they owed more in state income taxes than they had expected. Sanzone spoke with her co-workers about the issue at work, and employees complained to Triple Play, which scheduled a staff meeting in February to discuss the employees’ concerns. In the meantime, a former Triple Pay employee, with whom Sanzone was a “friend” on Facebook, posted the following “status update” to her Facebook page:

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!!!!

A number of the former employee’s friends – including current Triple Play employees and customers – made comments about this post. Sanzone posted her own comment regarding the original post: “I owe too. Such an *ssh*le.” Vincent Spinella, a cook at Triple Play who was also Facebook friends with the former employee, while not posting a comment, selected the “Like” option under the former employee’s original post.

One of Triple Play’s two co-owners found out about Sanzone’s and Spinella’s Facebook activity from his sister, who was Facebook friends with the former employee that made the original post as well. When Sanzone reported to work two days after posting her comment, Triple Play terminated her employment because, in the opinion of its owners, her Facebook comment showed a lack of loyalty. When Spinella reported to work the next day, Triple Play’s owners confronted him about whether he “had a problem with [the owners], or the company” and interrogated him about the “Like” selection, the identity of other people who posted comments, and whether Spinella had written anything negative about the owners. The owners then accused Spinella of liking disparaging and defamatory comments about Triple Play and discharged him.

An administrative law judge (“ALJ”) found that Sanzone and Spinella had been terminated in violation of the NLRA; however, the ALJ did not find that Triple Play’s Internet/Blogging policy violated the Act. On review, the Board adopted the ALJ’s finding of unlawful termination. As to Spinella’s “Like” selection, the Board agreed with the ALJ that the “Like” selection was an expression of support for the others who had shared their concerns, and that such an expression rose to the level of protected, concerted activity. The Board further found that neither Spinella nor Sanzone had made a disloyal or defamatory statement that would have lost the Act’s protection for concerted activity under the U.S. Supreme Court’s decisions in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966).

The Board, however, rejected the ALJ’s finding that Triple Play’s Internet/Blogging policy did not violate the Act. Instead, the Board held that employees would reasonably construe the policy to prohibit protected Facebook posts such as the ones that led to the termination of Sanzone and Spinella. Specifically, the Board found that the policy did not provide illustrative examples of what Triple Pay considered inappropriate, and the terminations of Sanzone and Spinella gave employees an “authoritative indication” that the policy extended to protected activity. As a result, the Board concluded that Triple Play’s maintenance of the policy violated Section 8(a)(1) of the Act. Member Philip Miscimarra, while agreeing that the discharges violated the NLRA, dissented from the Board’s finding as to the policy. Unlike his fellow Board members, Member Miscimarra did not agree that employees would reasonably understand the policy to cover protected activity.

As we have discussed previously, the Board has taken an expansive view of protected activity with respect to employees’ use of social media. The Triple Play decision further extends this view. Now, not only are comments on social media considered concerted activity, but even Facebook “Likes” enjoy federal protection. This decision serves as yet another reminder to employers to review their social media policies in order to insure that they do not intentionally or unintentionally infringe upon protected activity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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