United States: Second Circuit Holds That Facebook "Like" May Be Concerted Activity Under Section 7 Of The NLRA

The Second Circuit recently released a summary order in Three D, LLC v. NLRB affirming the National Labor Relations Board's (the Board) ruling that a Facebook "like" can be construed as concerted activity under Section 7 of the National Labor Relations Act (the Act).

The Facts

Bartender Jillian Sanzone and cook Vincent Spinella were employed by Three D, doing business as Triple Play Sports Bar and Grille. In 2011, Sanzone and Spinella responded to a former co-worker's Facebook post accusing the restaurant's owners of miscalculating taxes: "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!!!!" Specifically, Spinella "liked" the post and Sanzone commented "I owe too. Such an asshole." At least two Triple Play customers were on the same thread.

Triple Play maintained an "Internet/Blogging Policy" in its employee handbook prohibiting employees from, among other things, "engag[ing] in inappropriate discussions about the company, management, and/or co-workers." Triple Play fired Sanzone and Spinella, citing other reasons for their discharge.

Applicable Law

Section 7 of the Act guarantees employees the right to "self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection. . . ." 29 U.S.C. § 157. Section 8(a)(1) of the Act protects employees' Section 7 rights by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. 29 U.S.C. § 158(a)(1).

However, an employee's Section 7 rights must be balanced against the employer's interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business. An employee's speech may lose the protection of the Act if it is sufficiently disloyal (e.g., criticisms disconnected from an ongoing labor dispute) or defamatory (e.g., a statement made with knowledge of falsity or with reckless disregard of whether it is true or false).

The NLRB Proceeding

The following issues were before the Board: (1) whether Spinella's "like" and Sanzone's comment were concerted activities protected by the Act; (2) whether Triple Play violated the Act by terminating them for their Facebook activity; and, (3) whether Triple Play's "Internet/Blogging Policy" violated the Act because employees would reasonably construe the language to prohibit Section 7 activity. The NLRB ruled against Triple Play on all three issues.

The Board adopted the ALJ's recommendation that the Facebook activity was protected concerted activity because "the discussion concerned workplace complaints about tax liabilities" (i.e., discussion of "terms and conditions of employment" such as wages, policies, or employees' treatment in the workplace). Next, the Board determined that the conduct was not so disloyal or defamatory that it lost protection under the Act. The comments did not disparage Triple Play's products or services and Triple Play failed to establish that the comments were maliciously untrue. Finally, citing to the analysis in Lutheran Heritage Village-Lovonia, 343 NLRB 646 (2004) – a decision holding that an employer may violate the NLRA by maintaining a policy that has a chilling effect on an employee's protected activity (i.e., union organizing or concerted criticism of an employer) – the Board held that, although the "Internet/Blogging Policy" did not explicitly restrict the exercise of Section 7 rights, employees could reasonably interpret the policy to prohibit protected activity and, therefore, the policy was unlawful. Triple Play appealed.

The Second Circuit Ruling

On appeal, Triple Play argued that under the Second Circuit's decision in NLRB v. Starbucks Corp. 679 F.3d 70 (2d Cir. 2012), the company had a legitimate interest in addressing an employee's use of obscenities in the presence of customers. At issue in Starbucks, was the termination of an employee who shouted obscenities to a supervisor while in the store and within earshot of customers. Finding the Board improperly disregarded the entirely legitimate concern of Starbucks not to tolerate employee outbursts containing obscenities in the presence of customers, the Second Circuit remanded the matter to the Board for reconsideration of the standard that should apply when an employee utters obscenities in the presence of customers. Triple Play contended that Starbucks suggested that an employee's obscenities in the presence of customers were not protected under the Act and, therefore, the obscenities on the Facebook thread, which included at least two customers, were not protected. Rejecting Triple Play's reliance on Starbucks as "misplaced," the court concluded the Board adequately considered the Company's interests. The court further stated that application of the Starbucks decision to the current situation would undesirably chill "virtually all employee speech online" because "[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers." The court upheld the Board's ruling, stating the NLRB's decision "accords with the reality of modern-day social media use."

The court also upheld the Board's condemnation of Triple Play's "Internet/Blogging Policy," finding that "employees would reasonably interpret [it] as proscribing any discussions about their terms and conditions of employment deemed 'inappropriate' by Triple Play."

Lessons Learned

While the decision remains a summary order, the order makes clear that employers must exercise caution in controlling and responding to employee social media activity. The decision demonstrates both how something as simple as "liking" a Facebook comment may be protected activity and how social media activity that is arguably unprofessional, disloyal and/or disparaging, may also be protected in certain contexts. We recommend employers review policies that prohibit employees from engaging in "disrespectful," "negative," "inappropriate," or "rude" conduct towards the employer or management, absent clear clarification or context. Such policies may be construed as prohibitive of protected concerted criticism of the employer.

Earlier this year, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04, which was intended to provide clarity to the NLRB's enforcement efforts against employee handbook policies that his office considered to be overly broad, ambiguous, and infringing on employee rights. The memorandum provides guidance on a spectrum of very common employee handbook policies, including employer confidentiality rules, professionalism rules, anti-harassment rules, trademark rules, photography/recording rules, and media contact rules. The central message throughout the memorandum is that employers should avoid policies that could be construed as broad or ambiguous. Policies should clearly define the prohibited activity, while clarifying the kinds of activities not prohibited.

Employers who are concerned that their policies may be found unlawful should contact their labor and employment counsel to correct potential problems. Given the ever-changing nature of this area of the law, employers should work closely with experienced counsel to ensure policies and employment actions relating to employee social media activity do not run afoul of employee rights.

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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