On October 21, 2015, the Second Circuit upheld the National Labor Relations Board’s (NLRB) earlier ruling that clicking the Facebook “Like” button can be protected concerted activity. The Triple Play Sports Bar & Grill fired two workers after discovering a discussion on Facebook between several current and former employees regarding the bar’s tax withholding calculations.

A former Triple Play employee posted on Facebook: “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!!!!” Employee Jillian Sanzone commented on the status, “I owe, too. Such an asshole.” Employee Vincent Spinella “liked” the original status. Both Sanzone and Spinella were fired. The NLRB found that the firings were “not only unlawful” but that the company’s Internet/blogging policy was also unlawful under the National Labor Relations Act (Act).

On appeal, Triple Play argued that the NLRB’s ruling should be overturned because the employees engaged in commentary that was sufficiently defamatory or disloyal even if protected concerted activity. The Second Circuit agreed that while an employee’s Section 7 rights are important, they must be balanced against an employer’s interest in preventing disparagement of his or her product and services and protecting the reputation of the business. But the Second Circuit found here that the comments were not defamation and not sufficiently disloyal.

The court held that to be defamatory the comments must be maliciously untrue — in other words the employee making the comment must have knowledge of the falsity of it or reckless disregard on whether it was false. There was no evidence of malicious falsity here. Also, the speech did not involve disparagement of Triple Play’s product, services or brand. Triple Play argued that the obscenities in the postings could be viewed by customers. But the Second Circuit held that the mere existence of obscenities on Facebook postings that could be seen by customers is not enough to lose protection of the Act since such a standard would kill virtually all employee speech online. The Second Circuit did suggest though that if the obscenities were directed toward customers or reflected negatively on the employer’s brand product or services, such communication might lose the protection of the Act.

The takeaway is that Facebook postings or other social media commentary by employees must be carefully evaluated on whether it constitutes protected concerted activity under Section 7 of the Act and the degree to which the speech involves disparagement of the employer’s products, services or brand before any discipline of employees is contemplated.