“Like” It or Not: Employee Can’t Be Terminated for Facebook Activity

by John S. Gannon

We previously wrote about a decision by the National Labor Relations Board (NLRB) where the Board ruled that two employees who complained about their employer on Facebook were wrongfully terminated.  Here’s a short recap of the facts (for a more detailed look at the facts, see our previous post):  After a former employee complained on Facebook about the employer’s tax reporting practices, which included vulgarities and bad-mouthing the company, one employee (Vincent Spinella) “liked” the comments, while another (Jillian Sanzone) posted, “I owe, too.  Such an asshole.”  Both employees were terminated.  The NRLB concluded the terminations were unlawful.  Notably, the employees were not unionized.  Still, Section 7 of the National Labor Relations Act (NLRA) protects all employees who act together to improve their terms and conditions of employment, union or no union.

The employer, doing business as Triple Play Sports Bar & Grill (Triple Play), appealed the decision to the U.S. Court of Appeals for the Second Circuit.  Triple Play argued that the employees’ speech lost NLRA protection because it was obscene and disparaging of its services.   The employer tried to liken its case to a 2012 decision (by the same Court) where an employee was terminated for engaging in an obscene outburst in front of customers.  The Court ruled the employer in that case (Starbucks) could lawfully terminate the employee because Starbucks had a legitimate interest in preventing the disparagement of products and services in front of customers.

The Court reached in opposite conclusion in the Triple Play case and affirmed the decision of the NLRB.  According to the Court, Spinella’s and Sanzone’s commentary was protected because it was not directed toward customers and did not undermine Triple Play’s reputation.  Instead, the online dialogue was meant to seek mutual support toward group action (according to the Court at least), and therefore was protected activity under the NLRA and Triple Play could not terminate its employees for engaging in that activity.

This decision serves as a reminder that employee social media commentary—even in a non-union environment—will continue to receive broad protection from the NLRB and the courts.  Employers should seek legal counsel before terminating or disciplining employees for their social media use, even if the content is laden with profanities or disparaging speech.

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