Section 7 of the National Labor Relations Act guarantees that “employees shall have 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….”. The National Labor Relations Board (the “NLRB” or “Board”) has increasingly expanded the protections accorded to employee electronic communications under Section 7, even when electronic communication on social media includes disparaging and obscene comments about the employer. When social media posts touch upon the subject of employee wages, discipline or other terms and conditions of employment, these exchanges may constitute “concerted activity” protected by the NLRA.
Recently, the United States Court of Appeals for the Second Circuit upheld the NLRB’s decision in Triple Play Sports Bar and Grille (Triple Play) (2014), that the termination of two employees supporting a former employee’s obscenity-laced Facebook post disparaging Triple Play’s management was protected speech. While many employers believe that public disparagement and obscenities are a legitimate basis for termination, this decision illustrates the risks facing employers who take action against employees who increasingly resort to social media to complain about work-related matters.
Facts: LaFrance, a former employee of Triple Play, posted an update on her Facebook page criticizing Triple Play’s failure to properly complete tax withholding paperwork, causing her to owe the state money. The post stated “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 cook at Triple Play, clicked the “Like” button accompanying LaFrance’s post. Sanzone, a waitress at Triple Play, posted “I owe too. Such an asshole.” Several customers of Triple Play viewed the Facebook activity and Triple Play was eventually notified of the Facebook activity and in turn terminated the employees.
The NLRB held that Triple Play’s terminations were unlawful because the Facebook activity concerned wages and thus was protected activity under Section 7. The NLRB also found that Triple Play’s “Internet/Blogging Policy” prohibiting employees from engaging in “inappropriate” discussions about the company or management had an impermissible “chilling effect” upon employees’ right to challenge management actions. Triple Play appealed the Board’s decision.
Holding: The Second Circuit upheld the NLRB’s determination that Spinella’s and Sanzone’s terminations violated Section 7. The court reaffirmed the NLRB’s reasoning that the Facebook activity was “concerted” Section 7 activity because it involved current employees and was part of a sequence of discussions that began in the workplace about Triple Play’s calculation of employees’ tax withholding. The court also reaffirmed the NLRB’s reasoning that the Facebook activity was “protected” Section 7 activity because it concerned workplace complaints about the employee’s tax liabilities.
The court rejected Triple Play’s argument that employees’ Facebook activity should lose NLRA protection because it was obscene, disloyal and false, relying upon the Second Circuit’s prior ruling in NLRB v. Starbuck Corp., (2011). In that case the court strongly suggested that an employee’s obscenities uttered in the presence of customers would not be protected. The Second Circuit distinguished the Starbucks holding, noting that there the employee’s obscene outbursts were made directly to customers and disparaged Starbuck’s products; thus Starbucks had a legitimate interest in protecting its reputation from defamatory attacks. The Second Circuit reasoned that an extension of the Starbucks holding to the online communications at issue in Triple Play could lead to chilling all employee speech online, noting that
“[a]lmost 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 towards 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 court further observed that the Facebook activity at issue in Triple Play was not disparaging, given that the discussion clearly involved the ongoing labor dispute over income tax withholdings, allowing anyone who viewed the discussion to evaluate the messages critically in light of that dispute.
Finally, the Second Circuit upheld the NLRB’s determination that Triple Play’s “Internet/Blogging Policy” proscribing any “inappropriate discussions” about the company had an unlawful chilling effect on employees’ right to freely complain about the terms and conditions of employment.
Takeaway: This case is yet another illustration of the expansive protections accorded to employees under Section 7 of the NLRA. Before disciplining an employee for his or her social media activity, employers must keep in mind that social media activities will not be stripped of NLRA protection merely because they contain obscenities that could be viewed by customers or because the employer considers them disparaging or defamatory. Given the uncertainty over the protections accorded social media activity under the NLRA, employers should consult with employment counsel before taking adverse employment action. Additionally, employers should consult with counsel to ensure their social media policies are carefully drafted to ensure they do not have a “chilling effect” on Section 7 rights.