In two consolidated decisions involving Three D, LLC d/b/a Triple Play Sports Bar and Grille (the Sanzone and Spinella decisions), the National Labor Relations Board (the "Board") determined that an employee's use of the "Like" button on Facebook constituted protected activity under the National Labor Relations Act ("NLRA").
Employees of Triple Play discovered that they owed more in income tax, allegedly attributable to Triple Play's failure to withhold sufficient payroll taxes. When employees complained, the company scheduled a staff meeting to discuss the issue. Before the meeting, a former employee posted on 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!!!!" Spinella (a current employee) "Liked" the posting. The posting elicited over a dozen comments from current employees (including Sanzone), former employees, and customers expressing outrage at the situation and discussing possibly reporting the incident to government agencies. One of the comments alleged that one of the owners of Triple Play likely pocketed some of the withholding from the affected employees' paychecks.
Triple Play's owners learned of the posting and terminated Sanzone for her comment "I owe too. Such an *sshole." Further, the owners confronted and interrogated Spinella about, and ultimately terminated his employment for, "Liking" the posting, which they considered "disparaging and defamatory" and in violation of Triple Play's "Internet/Blogging" policy banning "inappropriate discussions" about the company.
In defending its decision to terminate, Triple Play argued that by commenting on the posting and "Liking" it, Sanzone and Spinella's Facebook activities lost their NLRA protection because some of the comments to the posting contained potentially defamatory statements made by other individuals. The Board disagreed and held that the terminations of Sanzone and Spinella, as well as the company's policy, were unlawful. Further, Spinella's use of the "Like" button constituted protected activity under the NLRA since he was expressing his support for the concerns shared by others on Facebook about the tax withholding liability.
This latest Board ruling confirms that social media policies and employee usage contain many landmines for employers with respect to protective activity and retaliation. Employers are encouraged to review their social media policies, and their enforcement of violations of such policies, to make sure that they comply with the NLRA.
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