Where’s the “Dislike” Button? 2nd Circuit Affirms Employee-Friendly Social Media Ruling

by Obermayer Rebmann Maxwell & Hippel LLP

In my last post on HR legalist, I outlined the current state of the law regarding employee social media use.  One trend I have been following is the National Labor Relations Board’s expansion of protections for employees who criticize their employers on social media.  For the most part, the NLRB’s rulings in this area have gone unchallenged in the federal courts, meaning that employers who discipline or terminate employees for critical posts could find themselves in hot water before one of the Board’s Administrative Law Judges.  This is significant because the NLRB has the power to award back pay, strike down employer policies, and even reinstate terminated employees.

Last August, a Connecticut sports bar, Triple Play Sports Bar, found itself on the losing end of one of the NLRB’s social media decisions.  The bar had terminated two employees for their activities on Facebook.  The first employee “liked” a post made by a former employee stating that Triple Play’s owners didn’t know how to properly handle payroll tax issues (the original post concluded: “Now I OWE money… Wtf!!!!”)  The second employee commented that she also owed money, and referred to one of the owners as an “asshole.”  The NLRB concluded that both the “like” and the comment were both protected under federal labor law because they were part of an ongoing discussion between four employees about the tax issue.

After the NLRB issued its ruling in favor of the employees, Triple Play appealed to the Second Circuit Court of Appeals. Unfortunately for the bar, the Second Circuit recently issued a summary order affirming the NLRB’s ruling, and agreeing with the NLRB on the three main legal issues on appeal.  First, the court rejected Triple Play’s argument that the comments lost protection because they contained obscenities that were seen by customers, reasoning that this argument would restrict “virtually all employee speech online.”  Second, the court agreed with the NLRB that the “like” and the comment were made to provide mutual support of other employees in an ongoing labor dispute, not to disparage Triple Play.  Finally, the court affirmed the NLRB’s ruling that employees could reasonably interpret the bar’s internet/blogging policy (which prohibited employees from “engaging in inappropriate discussions about the company”) to prevent them from discussing the terms and conditions of their employment.

This is not to say that employers are powerless to respond to inappropriate social media postings. First of all, the Second Circuit’s recent order is non-precedential, and the court denied the NLRB’s motion to publish the order.  Secondly, there are many other factors that come into play in determining whether employee postings are protected – such as whether multiple employees are involved, the topics being discussed, and whether any of the comments are defamatory, threatening, or discriminatory.  For now, however, the NLRB will likely continue scrutinizing employers who discipline employees for discussing workplace issues online.  Employers should make sure their social media policies comply with the law, and use caution when disciplining employees for posts that could be legally protected.

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.

© Obermayer Rebmann Maxwell & Hippel LLP | Attorney Advertising

Written by:

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP 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 info@jdsupra.com. 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: info@jdsupra.com.

- 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.