On Friday, at my firm’s annual Labor & Employment Law seminar, I’ll be talking about the NLRB and Employee Handbooks with my colleague, Chris Engler. Among the topics we had planned to discuss was the ongoing Triple Play Sports Bar & Grille case that I had previously posted about here and here.
So of course yesterday, the Second Circuit released an long-awaited decision on that very case. And it’s a strikeout for the employer.
The case involves a mix of old and new concepts. Old: Employees have the right to improve the terms and conditions of their workplace — so called “Section 7” rights to protected concerted activity under the National Labor Relations Act, even if they are not “unionized”. New: It applies to Facebook and other types of social media.
And now, even to Facebook “likes”.
In the case, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.
The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “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 . . . W[*]f!!!!”
LaFrance also posted about the accounting error, blaming it on the owner of Triple Play and stating that “It’s all Ralph’s [the owner] 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.”
Following this second post, Spinella selected the “Like” option under the LaFrance’s initial update. The discussion continued with several comments being posted, including one from LaFrance referring to Ralph as a “shady little man” who probably “pocketed it all from our paychecks.”
This Facebook discussion was brought to the attention of the owners of Triple Play who subsequently terminated Spinella because he “’Liked’ the disparaging and defamatory comments,” including LaFrance’s references to Ralph and his pocketing of money.
The NLRB, however, determined that Spinella’s termination violated the Act.
According to the NLRB, Spinella merely “Liked” the comments related to Triple Play’s alleged inability to complete tax paperwork correctly and failure to pay a former employee’s wages.
The employer appealed and the Second Circuit affirmed the NLRB’s decision yesterday in a (lengthy) summary order.
The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the cook’s] ‘like’ or [the bartender’s] statement could evaluate the message critically in light of that dispute
As summarized by Employment Law 360: “Triple Play argued that, because customers saw ex-employee Jamie LaFrance’s post, Jillian Sanzone’s comment calling her employer an “asshole” in the post’s comments and cook Vincent Spinella’s “like” of the post, the termination of Sanzone and Spinella was protected by the circuit’s 2012 NLRB v. Starbucks Corp. precedent. However, the panel said that the circumstances in Starbucks and this instance aren’t on par.”
That ruling was based on obscenities that were overhead by customers in a coffee shop. The court said it saw no reason to apply that standard to all social media.
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…. Almost all Facebook posts by employees have at least some potential to be viewed by customers.
I’ll discuss the further implications of the case, Three D LLC v. NLRB, at Friday’s seminar. But for now, employers need to understand the broad protections that the NLRB (and now the courts) are applying to speech on social media sites.
Or, put more simply, think twice before filing an employee just for “liking” an obnoxious Facebook post.