Anti-Employer Chatter On Facebook Protected By NLRA–Triple Play v. NLRB

October 25, 2015 · by Venkat Balasubramani · in Content Regulation, Privacy/Security

shutterstock / chrisdorney: “You’re Fired Rubber Stamp Over a White Background”

We previously blogged about this case, which involved employees who were discharged by Triple Play Sports Bar and Grille (the employer) for their Facebook activity: “NLRB Invalidates Employer’s Blogging Policy And Reverses Firing Based On Facebook Posts“. On appeal, the Second Circuit affirms the Board’s rulings and agrees that the employees were improperly fired.

Relevant employee posts included the following:

[m]aybe someone should do the owners of TriplePlay a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…..Wtf!!!!

The following responses ensued:

You owe them money..that’s fucked up [a Facebook friend and customer]

I FUCKING OWE MONEY TOO! [current employee]

The state. Not Triple Play. I would never give that place a penny of my money. [The owner] fucked up the paperwork…as per usual [the former employee who started the thread]

Yeah I don’t go to that place anymore. [Facebook friend and customer]

It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks. [the former employee]

…

[Spinlella, another employee, did not comment, but clicked the “like” button.]

I owe too. Such an asshole. [Sanzone, another employee]

Discharge Claim: The employee activity was “concerted” activity. The employer did not appear to contest this on appeal, but instead argued that the posts lost their protection because they were viewable by customers, contained obscenities and otherwise maligned the employer’s reputation. The court says that just because something is posted online, the employer cannot invoke the customer rationale to silence otherwise protected activity:

accepting Triple Play’s argument that Starbucks [a ruling that says statements that included obscenities in the presence of customers are typically not protected] 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.

Triple Play also argued that the employees’ endorsement of other employee posts that were false allowed the employer to invoke the exception for defamatory or disparaging speech. The court dismisses this argument as well, noting that in the context of the online discussions, it was clear the employees were complaining about an employer mistake with respect to taxes, and anyone could evaluate the entire [Facebook] conversation, “likes” and all.

Blogging policy: The Board held that the employer’s blogging policy, which was not invoked in this case, was nevertheless overbroad because it could be construed by employees to encompass protected activity. The policy at issue:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect. [emphasis added]

The appeals court summarily agrees that this employer’s policy is impermissibly overbroad.
__

There have been a slew of NLRB rulings dealing with employee terminations and whether they improperly curtail employees’ rights to agitate about the conditions of employment. However, I don’t recall a prior appellate ruling addressing these issues. It is worth contrasting this case with other unemployment and discharge cases where employees kvetch about their bosses or customers. We have seen a slew of cases where complaining employees are found to be rightly terminated or are denied unemployment benefits. (See, e.g., “More Proof That Facebook Isn’t The Right Place To Bitch About Your Job–Talbot v. Desert View“; “Employee Terminated for Facebook Message Fails to State Public Policy Claim — Barnett v. Aultman“; “Employee’s Twitter Rant Means He Doesn’t Get Unemployment Benefits–Burns v. UCBR“.) Arguably, the one difference is that the Triple Play posts explicitly reference pay and withholding, but that seems like a formalistic line to draw. Nevertheless, I thought it was worth noting.

The court (as was the NLRB) is careful about not attributing one employee’s statements to another and also says that context can render uninformed endorsement of someone else’s statement not legally actionable. (We see this sentiment often in the realm of online defamation, for example.) [Eric’s comment: the interplay between NLRB policies and Section 230 sounds like a good paper topic.]

Finally, the ruling also takes an employer-unfavorable approach to evaluating who the audience was to employee speech. This is the opposite of the approach in typical employee discharge cases where the employee’s arguments that a post was only viewable by his or her friends usually gets no traction whatsoever. The court flips that argument here and says that, even if customers viewed the speech, the employer can’t invoke brand harm as a basis for termination if the customers were not the primary audience.

Case Citation: Triple Play Sports Bar and Grille v. NLRB, 14-3284(L) (2d Cir. Oct. 21, 2015) [pdf]

Other Coverage:

Employer Strikes Out; Facebook Likes Protected by NLRA, Says Second Circuit

Let’s revisit that post about cursing out your boss on Facebook

Teacher’s Semi-Racy Facebook Photo Doesn’t Justify Firing – In re Laraine Cook

Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?

Employee’s Discrimination Claim Can’t be Salvaged by Coworker’s Allegedly Inappropriate Facebook Post — Brown v Tyson Foods

More Proof That Facebook Isn’t The Right Place To Bitch About Your Job–Talbot v. Desert View

Facebook Post Isn’t Good Reason To Remove Attorney From Probate Court Case Assignment List

Demoting Police Officer for Posting Confederate Flag to Facebook Isn’t First Amendment Violation

Nurse Properly Fired and Denied Unemployment Due to Facebook Rant

Employee’s Twitter Rant Means He Doesn’t Get Unemployment Benefits–Burns v. UCBR