At a recent employment law update forum for human resources professionals hosted by McLane Middleton, Professional Association, one of the most talked about topics was social media.  More specifically, what actions can be taken, if any, against employees who post about or discuss their employment negatively on social media, such as Facebook and Twitter?  With technology continuing to evolve, the law has often struggled to keep up.  However, a recent summary order by the Second Circuit Court of Appeals held that an employee’s use of Facebook’s ever-popular “like” button was concerted activity under the circumstances.  The opinion reminds employers  yet again to carefully review their  social media policies and to think twice before taking disciplinary measures against employees who post or just “like” unfavorable information about their employment on social media, even though it has the possibility to reach thousands, if not millions, of people – including customers.

In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, No. 14-3284, 2015 WL 6161477, at *1 (2d Cir. Oct. 21, 2015), a Connecticut sports bar appealed a decision of the National Labor Relations Board (“NLRB”) finding that it had violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) by discharging two of its employees for their Facebook activity and by maintaining an overbroad Internet/Blogging policy.  The employee conduct at issue was two-fold: (1) an employee named Spinella “liked” a status update of a former employee, LaFrance, which 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!!!!”; and (2) another employee’s, Sanzone’s, comment to the post stating “I owe too. Such an asshole.”

Section 7 of the NLRA 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.  29 U.S.C. § 157.  Section 8(a)(1) of the Act protects employees’ Section 7 rights by prohibiting an employer from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.  In its decision, the court noted that an employee’s Section 7 rights must be balanced against an employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business.  Accordingly, an employee’s communications with the public may lose the protection of the Act if they are sufficiently disloyal or defamatory.

However,  in this case, the court agreed with the NLRB that Spinella and Sanzone’s “like” and “comment” were protected activity under the Act because the discussion concerned workplace complaints about tax liabilities, their employer’s tax withholding calculations, and LaFrance’s assertion that she was owed back wages.  The court also found that the activity was not so disloyal as to lose protection of the Act because the comments did not mention the employer’s products or services, much less disparage them.  The court rejected Triple Play’s argument that a previous decision, NLRB v. Starbucks Corp., 679 F.3d 70, 77 (2d Cir. 2012), suggested that an employee’s obscenities uttered in front of customers would not be protected in most circumstances.  Distinguishing the present case from Starbucks, the court noted that the Starbucks panel premised its decision on a finding that the NLRB had disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.  In this case, however, the NLRB stated unequivocally that it had  considered the longstanding recognition that an employer has a legitimate interest in preventing the disparagement of its products or services and in protecting its reputation.  Additionally, the court considered that Spinella’s and Sanzone’s communications were made to seek and provide mutual support looking toward group action, and were not made to disparage Triple Play or undermine its reputation.

The court noted that almost all Facebook posts by employees have at least some potential to be viewed by customers and although some customers might have seen the Facebook discussion, it was not directed toward customers and did not reflect the employer’s brand.  The activity did not lose the protection of the NLRA simply because it contained obscenities that could have been viewed by customers online.  To hold otherwise, the court reasoned, could lead to potentially chilling effects on employees’ Section 7 rights to engage in concerted activities.

The court also affirmed the NLRB’s ruling that Triple Play’s Internet/Blogging policy, which did not explicitly restrict the exercise of Section 7 rights, was still overbroad because employees would reasonably interpret the policy as proscribing any discussions about their terms and conditions of employment deemed inappropriate by Triple Play.  The policy therefore violated Section 8(1)(1) of the NLRA since it would reasonably tend to chill employees in the exercise of their Section 7 rights.

Although the Second Circuit recently decided not to publish its decision, despite a petition to do so by the NLRB, the case is a good reminder that employers must be careful when it comes to disciplining and discharging employees for what seems to be detrimental speech online – whether it is a lengthy post, or just a “like” – it is still speech and may be protected as concerted activity by Section 7 of the NLRA.  This is another step in the NLRB’s increasingly expansive view of what constitutes protected activity by employees online.  Once again, employers should reevaluate their internet policies to determine if they  may  be reasonably interpreted as  violating Section 8(a)(1) of the NLRA.