Regular readers of this blog are well-aware that employee social media activity has been and continues to be a hot-button topic for the National Labor Relations Board. Cases involving Facebook and other social media posts rarely end well for employers (see  here, here, and here), and the Second Circuit Court Appeals' October 21, 2015 decision in Three D, LLC v. NLRB provides yet another example of the Board's aggressive protection of employee "Facebook" activity. In this case, the Second Circuit held that a sports bar violated the National Labor Relations Act ("NLRA") when it terminated two employees for commenting on and "liking" a Facebook post critical of the bar's owners.

The employee conduct at issue consisted of: 1) one employee's "like" of an ex-employee's status update stating, "[m]aybe someone should do the owners of [the sports bar] a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE!!!!" and 2) another employee's comment on the status referencing the owner, "I owe too. Such an asshole." The sports bar terminated both employees for this social media activity.

The National Labor Relations Board (the "Board") found, and the Second Circuit agreed, that both the comment and the mere posting of the thumbs-up "like" designation constituted activity protected under the NLRA because they "clearly disclosed the ongoing labor dispute over income tax withholdings...." The Second Circuit also agreed with the Board's conclusion that the employees' Facebook activity was neither "so disloyal as to lose the protection of the [NLRA] because [they] did not even mention [the sports bar's] products or services, must less disparage them" nor defamatory because there was no basis to conclude that the statements "were maliciously untrue."

Of likely significance, the Second Circuit rejected the sports bar's argument that the court's precedents would strip the employees' Facebook activity of protection because it contained obscenities that were viewed by customers. Distinguishing a prior decision that the use of obscenities in the presence of customers in customer areas may not constitute protected activity, the Second Circuit reasoned that applying that same standard to a Facebook post that customers may potentially see "could lead to the undesirable result of chilling virtually all employee online speech." According to the Second Circuit, "[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers." Although the Facebook posts in this case contained obscenities, they were "not directed toward customers and did not reflect the employer's brand." As such, the employees' Facebook activity fell squarely within the protections of the NLRA, and the sports bar's termination of the two employees therefore was unlawful.

The Second Circuit's rationale here ignores the distinctions drawn in the earlier case, however, between employee profanity which might be protected because it takes place "in the shop," away from public consumption, and the very public use of such inappropriate language among customers. Moreover, one could just as easily argue that a Facebook posting nowadays might do damage for an infinitely wider customer audience than a single vulgar verbal outburst in one store at one point in one day. Regardless, following the Second Circuit's endorsement of the Board's rationale here, employers should expect the Board to continue aggressively protecting a broader range of employee social media activity against employers, with the courts forced into increasingly complicated case-by-case line-drawing challenges on review.  

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