United States: Second Circuit "Likes" Where NLRB Shakes Out On Social Media: Finds That Facebook "Likes" And Obscenity-Riddled Posts Were Protected By NLRA

A unanimous panel of the Second Circuit recently upheld the NLRB's well-publicized Facebook "Like" decision, which found that a sports bar violated the National Labor Relations Act when it terminated two employees for "liking" and commenting on a disparaging post from a former employee. In an interesting twist, despite the NLRB's insistence that the opinion be published to make it precedential, the Second Circuit—one week after issuing the decision—elected to keep the decision an unpublished summary order.

We previously posted here and here about Three D, LLC v. NLRB, as it traveled from the NLRB to the Second Circuit Court of Appeals. To refresh your memory of the facts: A group current and former employees of a Connecticut sports bar, Triple Pay, discovered that they owed additional state income tax, allegedly due to Triple Play's failure to withhold sufficient payroll taxes. 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!!!!" In response, several current and former Triple Play employees as well as Triple Play customers posted angry comments, some of which contained obscenities and other defamatory remarks. A Triple Play bartender commented: "I owe too. Such an a**hole," while a Triple Play cook clicked the "Like" button as to the original post from the former employee. Triple Play promptly fired the bartender and the cook because of their Facebook activity.

The Second Circuit had little trouble finding that Facebook activity of the bartender and the cook constituted protected concerted activity under the NLRA since it was "part of an ongoing sequence of discussions that began in the workplace about [Triple Play's] calculation of employees' tax withholding." The next inquiry concerned whether the Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA. On appeal, Triple Play argued that because the Facebook activity contained obscenities that were viewed by customers, the NLRB should have found that this activity lost the protection of the NLRA under the Second Circuit's 2012 decision in NLRB v. Starbucks, a case involving an employee's obscenity-laced outburst in front of customers during a protest of a policy concerning wearing union pins on work uniforms.

The Court determined that Triple Play's reliance on Starbucks was misplaced because that case involved employee outbursts containing obscenities "in the presence of customers." The Second Circuit therefore distinguished Triple Play from Starbucks on the basis of customer-facing in-store conduct versus online conduct. The Court explained:

[A]ccepting Triple Play's argument that Starbucks should apply because the Facebook discussion took place "in the presence of customers" could lead to the undesirable result of chilling virtually all employee speech online. Almost all Facebook posts by employees have at least some potential to be viewed by customers. Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer's brand. The Board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use.

The Second Circuit further found that the bartender's and cook's Facebook activity was not meant "to disparage Triple Play or to undermine its reputation." Rather, the Court determined, "[t]he Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the bartender's] "like" or [the cook's] statement could evaluate the message critically in light of that dispute."

Finally, consistent with several recent Board cases, the Second Circuit affirmed that part of the NLRB's decision finding that Triple Play's "Internet/Blogging" policy discouraging online communications involving "confidential or proprietary information about the Company, or ... inappropriate discussions about the company, management, and/or co-workers" was vague and overbroad, and therefore violated the NLRA. The Second Circuit agreed that that the policy violated the NLRA because "employees would reasonably interpret [Triple Play's] rule as proscribing any discussions about their terms and conditions of employment deemed 'inappropriate' by [Triple Play]."

While it is no secret that the NLRB has—for several years—spoken on these issues in a decidedly pro-employee manner, appellate courts had (until now) few opportunities to weigh in. Now that the Second Circuit has chimed in—siding with the NLRB—employers should certainly take notice, whether the decision has precedential value or not. When brought to their attention, employers ought to carefully consider the content and context of employees' Facebook and other online/social media activity before making any rash employment decisions based on that activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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