On August 22, 2014, the National Labor Relations Board (NLRB) issued a Decision and Order in which it found that Facebook activities – including “Liking” a post – can constitute concerted activity protected by Section 7 of the National Labor Relations Act (the Act). Section 7 of the Act gives employees the right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees” and applies to all employees, whether or not they are unionized. If an employer disciplines or fires an employee for engaging in protected concerted activities, the employer faces a variety of penalties, including having to reinstate the fired employee to the same or a substantially equivalent position and/or pay back wages.
The case examined by the NLRB arose in January 2011 when employees and former employees of the Triple Play Sports Bar and Grille learned that they owed additional state income taxes due to an accounting error. Employees discussed the situation at work and complained to Triple Play, which scheduled a staff meeting to discuss the employees’ concerns. Prior to that meeting, Jamie LaFrance, a former employee, posted a 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…Wtf!!!!
The post spawned a Facebook conversation among LaFrance and several of her Facebook friends – most of them former or current Triple Play employees – in which they griped about Triple Play and having to pay additional taxes. Vincent Spinella, a cook at Triple Play, “Liked” LaFrance’s status update, but did otherwise engage in the online discussion. Jillian Sanzone, a waitress and bartender at the restaurant, commented that she too owed money, and called one of the owners of Triple Play an “a**hole.” When Spinella returned to work a few days later, the owners of Triple Play “interrogated him” about the Facebook discussion and the meaning of his “Like” selection. Spinella was then fired for disloyalty. Jillian Sanzone’s employment was also terminated.
The case was first heard by an administrative law judge, who found that the Facebook discussion was concerted activity under the Act because it involved four current employees and was “part of an ongoing sequence” of discussion that began in the workplace about Triple Play’s calculation of employees’ tax withholding. The judge further found that the discussion was protected concerted activity because it concerned (among other issues) workplace complaints about tax liabilities and Triple Play’s tax withholding calculations. The judge found that Spinella’s selection of the “Like” button expressed his support for the others who were sharing their concerns and “constituted participation in the discussion that was sufficiently meaningful as to rise to the leave of” protected, concerted activity.
Triple Play filed an exception to the administrative law judge’s ruling, and the case was taken-up by a three member panel of the NLRB. Although perhaps surprised that the judge found simply “Liking” a Facebook post can constitute protected concerted activity under the Act, Triple Play did not dispute that finding or that its employees had a protected right to engage in a Facebook discussion about Triple Play’s tax withholding calculations. Rather, Triple Play argued that, as a result of their Facebook activities, Sanzone and Spinella defamed and disparaged Triple Play and thereby lost the protection of the Act. Applying the analytical framework established in NLRB v. Electrical Works Local 1229 and Linn v. Plant Guards Local 114, the NLRB disagreed. Although an employer has a “legitimate interest in preventing … disparagement of its products or services and, relatedly, in protecting its reputation … from defamation,” Sanzone and Spinella had not disparaged or defamed Triple Play. As an initial matter, the Facebook conversation in which the employees and former employees participated was not directed to the general public, and the comments at issue did not “even mention [Triple Play]’s products or services, much less disparage them.” Second, there was no basis for finding that the employees’ comments about Triple Play’s withholding error were maliciously untrue, and by calling her employer an “a**hole” Sanzone was “merely (profanely) voicing a negative personal opinion….”
The decision makes clear that the NLRB will continue to treat online social media activities in the same manner and apply the same analytical framework as it does activities that take place around the water cooler. Indeed, employers should tread carefully when considering disciplining employees for their social media activities.