NLRB Holds That Discharge of Employees for Facebook Conversation Was Unlawful

September 10, 2014

By: Robert F. Manfredo

On August 22, 2014, the National Labor Relations Board ("NLRB") issued companion decisions in Three D, LLC d/b/a Triple Play Sports Bar and Grille, holding that the employer violated the National Labor Relations Act ("NLRA") by terminating two employees for participating in an online discussion on Facebook.  The Triple Play decision is yet another reminder to employers to exercise caution in imposing discipline against employees for conduct that takes place on social media.  The decision also underscores the need for employers to review their existing social media policies to ensure that the policies are not so overly broad that employees might interpret them to prohibit complaints and conversations about their terms and conditions of employment. Triple Play is a bar and restaurant whose employees are not unionized.  In January 2011, Jillian Sanzone and another employee discovered that they owed more in State income taxes than they had expected due to a withholding error by Triple Play.  While at work, Sanzone complained about this issue to other employees who, in turn, complained to the employer.  In response, the employer planned to hold a meeting in February with its staff members and payroll company to discuss the employees' concerns. On January 31, 2011, Jamie LaFrance, who had left her employment with Triple Play in November 2010, 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 . . . Wtf!!!!"  Several employees and non-employees responded to LaFrance’s post with various comments, most of which used profanity and criticized Triple Play's owners.  One employee, Vincent Spinella, did not post a comment, but did select the “Like” button under LaFrance’s original comment.  Sanzone posted her own comment, stating:  “I owe too.  Such an asshole.” One of Triple Play's owners learned about the Facebook discussion through his sister, who was a Facebook “friend” of LaFrance.  When Sanzone reported to work on February 2, 2011, Triple Play's owners notified her that she was being discharged because of her Facebook comment.  On February 3, 2011, when Spinella reported to work, Triple Play’s owners called him into a meeting, questioned him about the Facebook conversation, and informed him that he was being discharged because his selection of the "Like" button meant that he supported the "disparaging and defamatory comments" of the other participants in the conversation. The NLRB affirmed the Administrative Law Judge’s decision that the Facebook discussion constituted concerted activity under Section 7 of the NLRA and “was ‘part of an ongoing sequence’ of discussions that began in the workplace about the Respondent’s calculation of employees' tax withholding.”  The NLRB also held that Sanzone and Spinella were engaged in protected concerted activity because the Facebook discussion related to “workplace complaints about tax liabilities, the Respondent’s tax withholding calculations, and LaFrance’s assertion that she owed back wages.”  Notably, the NLRB found that Spinella’s selection of the “Like” button “expressed his support for others who were sharing their concerns and ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” In balancing the interest of Triple Play's owners in preventing disparaging comments by their employees, the NLRB held that Spinella's and Sanzone’s comments were not “so disloyal” as to lose protection under the NLRA.  Accordingly, the NLRB affirmed the Administrative Law Judge’s decision that Triple Play violated the NLRA by interrogating and discharging Spinella and Sanzone because of their participation in the Facebook conversation. Notably, the NLRB also found that Triple Play's “Internet/Blogging” policy violated Section 8(a)(1) of the NLRA.  Although the policy did not explicitly restrict protected activity, the NLRB held that the policy, insofar as it prohibited employees from engaging in “inappropriate discussions about the company,” was overly broad.  In light of Triple Play's discharge of Spinella and Sanzone, the NLRB reasoned that Triple Play's other employees could reasonably interpret the policy as prohibiting discussions regarding their terms and conditions of employment.