NLRB's Recent Triple Play Decision Tackles Two Critical Social Media Issues for Employers

by Littler

With the intersection between cutting-edge social media and the Depression-era National Labor Relations Act (NLRA or the Act) still relatively new, employers are looking for answers to some fundamental questions when it comes to regulating employees’ off-duty social media posts about work.  The National Labor Relations Board’s (NLRB or the Board) recent decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014), answered two of those questions:  (1) How far can employees go when posting social media content protected under Section 7 of the NLRA before their posts lose that protection?; and (2) Can employees who do nothing more than click on the ubiquitous thumbs-up icon to “Like” social media content claim the protections of Section 7 of the NLRA?  In addition to answering these two critical questions, Triple Play provides useful guidance for employers on drafting a social media policy without raising a red flag for the NLRB.

The Board answered the above questions in response to the firing of two employees by Triple Play Sports Bar and Grille (the employer) for alleged disloyalty shortly after the owners viewed an exchange on Facebook among the employees, co-workers, a former employee, and customer that was highly critical of the owners.  In its ruling, the Board (a) set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7, (b) determined that the “Like” in that case was protected, (c) reversed the employee’s firing, and (d) found a key provision in the employer’s social media policy to be unlawfully overbroad.  While the employer in Triple Play suffered defeat, the Board’s decision, for the reasons discussed below, should help other employers avoid a similar fate.

The Facebook Discussion and the Employees’ Discharge

The employer is a non-union bar and restaurant in Watertown, Connecticut. While preparing their tax returns in January 2011, several employees discovered that they owed money to the state of Connecticut. Suspecting a mistake by the bar’s owners when calculating their state tax withholding, some employees complained. The owners organized a staff meeting with the payroll provider to discuss the issue.

Before this meeting, Jamie LaFrance (LaFrance), a former employee who had recently left employment with the employer started a Facebook conversation by posting the following status update:

"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!!!!"

Several comments followed in which a customer and a current employee sympathized.

LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state’s “labor board.” At that point, a current employee, Vincent Spinella (Spinella), selected the “Like” option under LaFrance’s initial status update.

As the Facebook exchange continued, LaFrance verbally attacked one of the owners:

"Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks."

Another current employee, Jillian Sanzone (Sanzone), followed this statement by posting: “I owe too. Such an asshole.”  More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.

After learning about the Facebook exchange from one of LaFrance’s Facebook friends, a current employee who happened to be the sister of one of the owners, the owners questioned Spinella about his “Like.”  They told Spinella that it was “apparent” he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment. 

Underlying Discussion Protected

The parties did not dispute, and the Board affirmed the Administrative Law Judge’s (ALJ) finding, that Section 7 protected the underlying Facebook discussion about allegedly incorrect tax withholdings because the discussion related to terms of employment and was intended for employees’ mutual aid and benefit.  More specifically, the ALJ held the Facebook discussion was concerted activity because it involved current employees engaged in an ongoing sequence of discussions about a condition of employment, namely, the employer’s calculation of employee tax withholdings. As additional support for this conclusion, the ALJ noted that the employees in their Facebook conversation were seeking to prepare for group action by discussing issues they intended to raise at a staff meeting and considering possible avenues for complaints to government authorities.

How to Determine When an Employee’s Otherwise Protected Social Media Post Crosses the Line

Because it was undisputed that Section 7 protected the underlying Facebook discussion, the NLRB focused on the employer’s contention that Spinella’s “Like” and Sanzone’s calling one owner an “asshole” lost the Act’s protections as disloyal or defamatory statements. As a starting point, the Board rejected the ALJ’s application of the factors taken from the Board’s decision in Atlantic Steel Co., 245 NLRB 814 (1979). The Board reasoned that those factors could not logically be applied to most social media discussions because they had been developed to balance employees’ Section 7 rights in the context of an in-person discussion with supervisors in the workplace against an employer’s interest in workplace discipline.

The Board determined that off-duty social media exchanges occurring outside the workplace are more properly analyzed under standards designed to balance employees’ right to engage in Section 7 activity against the employer’s interest in protecting its reputation.  One of those standards, based on the Supreme Court’s decision in NLRB v. Electrical Workers Local 1229, 346 U.S. 464 (1953) (Jefferson Standard), applies to public statements that disparage the employer’s products or services.  Under that standard, mere disloyalty may lose the Act’s protections. For example, in Jefferson Standard, the Supreme Court upheld the discharge of employees who publicly attacked the quality of their employer’s product and its business practices without relating their criticisms to a labor controversy.

The other standard, based on the Supreme Court’s decision in Linn Plant Guards Local 114, 383 U.S. 53 (1966), applies to allegedly defamatory comments about the employer and its employees.  Under that standard, if the employee’s social media post relates to an ongoing work dispute with the employer, the post will not lose its protection unless it is uttered “with knowledge of its falsity, or with reckless disregard of whether it was true or false.” This is the well known “actual malice” standard first adopted by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to protect First Amendment rights. As New York Times and its progeny have demonstrated, the “actual malice” standard can be difficult to meet.

The Employees’ Social Media Activity in Triple Play Did Not Lose its Protection

The Board determined in Triple Play that the employees’ comments did not lose the Act’s protection as disloyal or disparaging under Jefferson Standard.  The Board found that “[t]he comments at issue did not even mention [the employer’s] products or services, much less disparage them” but rather related to an on-going labor dispute.  The Board also emphasized that the discussion was not “directed to the general public,” even though one of the employer’s customers had participated.  According to the Board, because the communications took place on a personal Facebook profile rather than a more public social media venue, such as a company Facebook page, the discussion was “comparable to a conversation that could potentially be overheard by a patron or other third party.” Notably, the NLRB concluded that, regardless of the participants’ Facebook privacy settings, such a discussion was not public and suggested that anything less than disparagement in social media specifically directed to the general public would be adequately private to avoid losing protection for disloyalty under Jefferson Standard.

The Board also held that neither employee’s comment lost protection under Linn’s actual malice standard.  After reviewing the entire e-mail exchange, the Board found the only potentially defamatory statement to be LaFrance’s insinuation that the employer’s owners had “pocketed” the employees’ tax withholdings and concluded that neither Spinella nor Sanzone had adopted that statement.  With regard to Spinella’s “Like,” the NLRB explained its conclusion as follows:

We interpret Spinella’s “Like” solely as an expression of approval of the initial status update. Had Spinella wished to express approval of any of the additional comments emanating from the initial status update, he could have “Liked” them individually.

In other words, because Spinella did not “Like” LaFrance’s allegedly defamatory follow-up comment, although he could have done so, he could not be held responsible for the allegedly defamatory comment.

The Board followed similar reasoning in analyzing Sanzone’s comment: “I owe too. Such an asshole.” Despite the fact that Sanzone’s comment immediately followed LaFrance’s potentially defamatory statement, Sanzone had voiced agreement only with LaFrance’s earlier-stated tax concern.  More broadly, the Board “reject[ed] [the employer’s] contention that Sanzone or Spinella can be held responsible for any other comments posted in the exchange.”

The Board also rejected the employer’s assertion of defamation for lack of proof.  According to the Board, the employer had failed to produce evidence showing that either statement was knowingly false or made with reckless disregard for the truth.  The Board also concluded that Sanzone’s reference to one of the employer’s owners as an “asshole” was not a statement of fact, but rather the expression of a personal opinion that cannot be false for purposes of Linn’s actual malice standard.

A “Like” is Not Always Protected Under the NLRA

Throughout its decision, the Board assumed that Spinella’s “Like,” standing alone, was protected, but the Board did not state, or even suggest, that every “Like” is protected.  To the contrary, the Board’s analysis turned heavily on the context of the “Like.” The Board emphasized that Spinella’s “Like” in question related to LaFrance’s initial status update complaining about the alleged tax withholding, and not to LaFrance’s later, allegedly defamatory comment.  In other words, Triple Play suggests that the Board will analyze each “Like” to determine the specific social media post for which it demonstrates support and then will decide whether the social media post that was adopted warrants protection under Section 7 of the NLRA. 

In light of this method of analysis, employers should not assume that an employee agrees with every statement in a discussion posted on social media merely by selecting “Like.” Instead, employers should look closely to see what specific posting the employee has “Liked” or otherwise endorsed.

Employer’s Prohibition of “Inappropriate Discussions” Violated the NLRA

After reversing the employees’ discharge, the Board turned to the employer’s Internet/Blogging Policy and ruled that its prohibition on “inappropriate discussions” violated the NLRA. The policy read in relevant part as follows:

"[W]hen internet blogging, chat room discussions, . . . or other forms of communication extend to employees … 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. . . . In the event state or federal law precludes this policy, then it is of no force or effect."

(emphasis supplied). 

Citing its opinion in Lutheran Heritage Village, the NLRB noted that a rule violates Section 8(a)(1) of the NLRA by unreasonably chilling employees’ exercise of their Section 7 rights if (1) the rule explicitly restricts activities protected by Section 7; (2) employees would reasonably construe the language to prohibit Section 7 activity; (3) the rule was promulgated in response to union activity; or (4) the rule has been applied to restrict the exercise of Section 7 rights.” 343 NLRB 646, 647 (2004). Finding the other prongs clearly inapplicable, the NLRB focused on the second prong and concluded that employees would reasonably interpret the phrase “inappropriate discussions” to encompass protected activities. The Board noted that the employer could have made the term “inappropriate” less imprecise by providing illustrative examples. The bare phrase, according to the Board, was unlawfully overbroad.  The Board also refused to give any effect to the policy’s savings clause.

In his dissent, Board Member Miscimarra disagreed with the majority’s finding that the ban on “inappropriate discussions” violated the Act. With regard to overbreadth, Member Miscimarra rejected the proposition that imprecise catch-all phrases violate the Act. He noted that the Supreme Court in Steelworkers v. Warrior & Gulf Navigation Co., espoused the need for broad terms to encompass those cases that a drafter cannot anticipate. 363 U.S. 574, 578–579 (1960). Moreover, in this particular case, Member Miscimarra found that the language of the employer’s policy did limit the catch-all term. He interpreted the language — “the employee may be violating the law and is subject to disciplinary action” — to mean that the employee could be disciplined only if the employee’s discussion violated the law. In addition, he noted that the inclusion of a savings clause in the policy reinforced the view that the employer intended the phrase “inappropriate discussions” to be interpreted in a lawful manner.

This criticism will undoubtedly strike a chord among employers struggling to make sense of the NLRB’s general jurisprudence on lawful social media policy language. The term “inappropriate”, in particular, has been subject to some of the most conflicting NLRB opinions. Depending on the context and extent of illustrative examples, different opinions have found the term “inappropriate” both unlawful and lawful.

Key Takeaways for Employers

The Board’s decision in Triple Play provides the following useful takeaways for employers:

1.     Because a “Like” standing alone can be protected, employers should consider consulting with counsel before disciplining employees based on their selection of the “Like” button.

2.     When analyzing whether a “Like” is protected speech, employers should refer to the specific post or comment to which the “Like” relates.

3.     When analyzing whether otherwise protected social media posts have crossed the line and lost their protection, the Board will apply different standards to disparagement of the employer’s products and services and defamation of the employer or members of its workforce.

4.     The actual malice standard applicable to defamatory statements imposes a heavy burden on the employer to prove that the employee posted content knowing it was false or it was made with reckless disregard for the truth.

5.     Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media related to work.

6.     The Board continues to closely scrutinize social media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the Board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech.  Relatedly, employers should expect the Board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation.  Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.

Written by:


Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.