Employment Law Report

The Second Circuit Finds Facebook Post And “Like” To Be Protected Activity

By Michael D. Hornback

FacebookI’ve deleted my fair share of late night or politically charged Facebook status updates (hopefully before too many of my “friends” saw them). Does anyone know if it is even appropriate to “like” a Facebook post conveying a bad day, adverse medical diagnosis or even worse, a death in the family? I’m still struggling with that one. For employers, Facebook posts and the “like” button can raise even more pressing issues, like legal consequences under the National Labor Relations Act (the “Act”), as was shown in the recent Second Circuit decision in Three D, LLC v. National Labor Relations Board, 2015 WL 6161477. In short, the Second Circuit affirmed a decision by the National Labor Relations Board (“NLRB”) finding that an employer violated the Act by discharging employees for their Facebook activity.

Three D operated a business called Triple Play Sports Bar and Grille (“Triple Play”). One employee of Triple Play posted a Facebook status update (probably late at night) reading “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!!!” Thereafter, another employee “liked” the post and a different employee commented “I owe too. Such an assh*le.” According to the opinion, the discussion of Triple Play’s alleged tax withholdings issues actually began between employees in the workplace, and subsequently spilled into the Facebook post noted above. After Triple Play found out about the posts, it terminated two of the employees.

The employees took issue with their terminations and the NLRB found in their favor, ruling that Triple Play violated the Act by taking action against the employees for their Facebook posts.

Section 7 of the Act guarantees that employees have the right to self-organize, form, join or assist labor organization, and to “engage in other concerted activities for the purpose of . . . mutual aid or protection . . ..” Section 8 of the Act prohibits an employer from interfering with, restraining, or coercing employees in the exercise of these rights. As the Second Circuit noted, the rights of the employees must be balanced against the employer’s interest in preventing disparagement of the employer’s products or services and the protection of its reputation. Therefore, an employee’s communication with the public may lose protection under the Act if it is sufficiently disloyal or defamatory. By example, a communication by an employee to the public may be sufficiently disloyal, so as to lose protection under the Act, if it is not connected to any ongoing labor dispute and does not concern the terms and conditions of their employment.

At the Second Circuit, Triple Play argued, among other things, that under prior case law, the employees’ posts which contained obscenities lost protection under the Act because customers saw the posts. The Second Circuit rejected this argument, noting that its prior decision involved employees using obscenities in the physical presence of customers. The Court went on to note that just because customers could potentially see the Facebook posts, they were not directed at customers and did not reflect on Triple Play’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 Second Circuit adopted the NRLB’s finding that the Facebook posting, and subsequent “likes” and comments, were “concerted activity” under the Act.   Furthermore, such postings were protected because they were part of an ongoing discussion, which originated in the workplace, between employees with regard to Triple Play’s calculation of the employees’ tax withholdings (i.e., terms and conditions of their employment). The Second Circuit also found that Triple Play violated the Act by threatening employees with discharge for their Facebook activity and interrogating employees about their Facebook activity.

Social media is pervasive in our lives. We can post something within moments of the thought coming into our head, without ever reflecting on the consequences thereof. Likewise, employers can make snap judgments about disciplining an employee because of something written or “liked” on social media. As this case illustrates, those quick decisions by employers can have legal consequences. As an employer, it would be wise to seek legal counsel before taking action against an employee for their social media presence.