Employers Will Not “Like” This!

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Employers Will Not "Like" This!

It is not uncommon to read Facebook posts from “friends” complaining about their boss or work situation.  Are those comments simple “venting” among friends?  Can an employer take action against an employee who “vents” on social media because the employer perceives the comments to be defamatory and/or disloyal?  While the answers to these questions are often dependent on specific facts of the situation, on August 22, 2014, the National Labor Relations Board (NLRB) issued a decision that employers will definitely not “Like.”

The Facts:

The case involved Triple Play Sports Bar and Grille (Triple Play) in Waterbury, Connecticut.  According to the NLRB, in January 2011, at least two employees of Triple Play learned that they owed more in State income taxes than they had expected.  They discussed this at work with other employees, and some employees complained to Triple Play.  In response, Triple Play planned a staff meeting for February with its payroll provider to discuss the employees’ concerns.

On January 31, 20122, one former employee (LaFrance) posted the following on her Facebook status update:  “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!!!!”  Subsequently, some of LaFrance’s Facebook friends, including Triple Play co-workers and customers, commented and liked various comments in the communication chain.  This included Jullian Sanzone (a Triple Play waitress and bartender) and Vincent Spinella (a Triple Play cook).  In the comment chain, Sanzone commented, in reference to Triple Play and the owner:  “I owe too.  Such an asshole.”  And, though he did not provide any comment, Spinella “Liked” LaFrance’s original status update.

The day after she posted her comment, Sanzone reported for her normal work shift.  Upon arrival, she was told that she was being discharged because she “was not loyal enough to be working for [Triple Play] because of her Facebook comment.”

When Spinella reported for his shift the day after Sanzone was terminated, Spinella was “interrogated” by Triple Play, and eventually he was discharged since he “liked the disparaging and defamatory comments,” and it was “apparent” that [he] wanted to work somewhere else.

The two sued Triple Play for unlawful termination under the National Labor Relations Act (NLRA).

The Law:

Generally, according to the NLRB in the Triple Play decision, the NLRA allows employees the right to band together “to improve terms and conditions of employment or otherwise improve their lot as employee – including by using social media to communicate with each other and with the public for that purpose.”  Simply, employees are allowed to engage in protected concerted activities for mutual aid or protection.  (To read more about the NLRB and NLRA, see my post titled “Employers:  Don’t Ignore These Two Acronyms For Social Media Compliance,” and other related posts at Maximize Social Business.)

Here, the Judge and then the NLRB, found the Facebook discussion was “concerted” activity  because it involved four current employees and was “part of an ongoing sequence of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding.”  It was also determined that the employees engaged in “protected” activity “because the discussion concerned workplace complaints about tax liability, [Triple Play’s] tax withholding calculations, and LaFrance’s assertion that she was owed back wages.”  As for Spinella, they determined that his “Like” “expressed support for the 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.

Triple Play argued that the comments and “Like” of the comments were defamatory and disparaging, and thus, were not subject to protection under the NLRA.  Ultimately, the NLRB disagreed and also determined that the two employees were not responsible for the other comments in the dialogue.

As a result, the NLRB determined that Triple Play unlawfully terminated Sanzone and Spinella.  Read here for the NLRB’s full decision and order in Sanzone and Spinella vs. Triple Play Sports Bar and Grille.

The NLRB did not stop there.  It also determined that Triple Play’s “Internet/Blogging policy” also violated the NLRA.  Specifically, the NLRB found the following language in the policy to be troubling:  engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.”  The Board held that the term “inappropriate discussions” was too vague and ambiguous, and that, overall, this policy chilled employees in the exercise of their rights under the NLRA.

What this all means:

For Employers:  This may be the first case regarding a “Like” as a protected activity.  But now, a subtle “Like” could be as significant as written comments.  Employers should analyze whether they are terminating an employee for an activity that could be construed to be protected and concerted under the law.  This means, among other things, training managers, HR personnel, and business owners.  Furthermore, this case also demonstrates the need for clear, unambiguous policies about internet use, blogging, social media and related issues.

For Employees:  While these two employees prevailed in their case, was it worth it?  Why vent about workplace issues on social media?  Yes, it may be protected activity, but is it professional to be venting about your job on social media?  And, being terminated, if even unlawfully, is not a positive experience, nor something most professionals want to share via social media.  If employees are concerned with a workplace situation, employees may be better served in participating in meetings and dealing with issues the “old-fashioned way:” in person.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.  No attorney-client relationship is created via this website.

About the Author:

James Wu

This monthly Social Media and Employment Law column is contributed by James Y. Wu. For over 15 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation’s leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu

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