From Westlaw Journal Computer & Internet: A Connecticut bar-and-grill violated a federal labor law when it fired two employees for “liking” and responding to a former co-worker’s Facebook post about their wages and tax liabilities, a federal appeals court has affirmed.
The National Labor Relations Board found Triple D LLC’s employees engaged in protected activity when they continued a discussion on Facebook about their employer’s tax withholding, and the 2nd U.S. Circuit Court of Appeals agreed.
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Additionally, the employees did not disparage Three D or even mention the bar’s name in their Facebook posts, which meant they did not lose protection of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), the 2nd Circuit opinion said.
Employees may lose the federal labor law’s protections if their activity is considered disloyal or if it reflects poorly on the employer’s brand, the opinion said.
That was not the case here, the panel said.
(Click here to view the decision on WestlawNext.)
The appeals court upheld the NLRB’s decision that Three D, which does business as Triple Play Sports Bar and Grille, violated the federal labor law when it discharged the employees for their protected activity, threatened to discharge and interrogated them for their Facebook posts.
The panel also affirmed the board’s decision that the bar’s blogging/Internet policy violated the workers’ rights.
Specifically, the board found employees would reasonably construe the bar’s policy to proscribe protected activity, and the panel found the facts supported this outcome and upheld the decision.
Significant signal?
Keith A. Markel, a labor and employment partner with Morrison Cohen LLP, said the decision was somewhat expected because the employees’ Facebook posts specifically mention work-related matters that could fall under the umbrella of the labor law’s protected activity.
“The decision nonetheless signals one of the first times that the NLRB, or any court, has addressed the significance of whether a Facebook ‘like’ constitutes protected concerted activity under the act,” he said.
Tim Stephenson, a labor and employment partner at Kirkland & Ellis, also remarked about the significance of a court decision involving employees’ social media communications about employment conditions.
Right now, however, the opinion is unpublished, he pointed out.
This means the decision applies to Three D but will not generally be considered binding precedent in the 2nd Circuit or other courts, he said in an Oct. 26 email.
“Should the court reverse course and publish, the decision would have precedential effect in the 2nd Circuit and be more likely to be cited in other jurisdictions,” he said.
Neither Markel nor Stephenson was involved with the lawsuit or administrative proceedings.
Although the NLRB asked the 2nd Circuit to publish the summary order, the panel denied the motion Oct. 27.
The NLRB decision
According to the board’s decision in the case, Three D employees Jillian Sanzone and Vincent Spinella participated in protected activity when they expressed on Facebook that Triple Play Sports Bar & Grille may have miscalculated employees’ tax withholdings.
The Facebook thread also mentioned that they intended to raise this workplace concern at an upcoming staff meeting, the three-member board panel said. Three D LLC, 361 N.L.R.B. No. 31 (Aug. 22, 2014).
(Click here to view the NLRB’s decision on WestlawNext.)
Two of the panelists also found the bar’s “Internet/blogging” policy unlawful because employees could reasonably construe the policy’s imprecise language, which prohibited “inappropriate discussions,” as chilling protected activity.
The board reversed an administrative law judge’s decision on this issue, and the 2nd Circuit panel upheld the board’s decision.
Lessons about ‘liking’
The 2nd Circuit’s decision shows why employers need to pay attention to their social and other media policies, Stephenson at Kirkland & Ellis said.
He also warned, however, that employees’ Facebook posts may not always be protected.
“This is a developing area of labor law in which there will be differing opinions and different outcomes in similar factual circumstances,” he said.
Labor and employment attorney Robert A. Boonin, a member at the law firm Dykema, noted the opinion is somewhat fact specific but cautioned what it may mean for companies seeking to discipline their employees for social media activity.
“Therefore, before employers take any action against employees for their social media postings, they should confer with counsel,” Boonin said. “Employers taking action in these cases will be walking on thin ice, so extra care is needed.”
Judith A. Williams-Killackey, a labor and employment partner at the law firm Quarles & Brady, mentioned some practical lessons employers may take away from the opinion.
“The 2nd Circuit’s decision reemphasizes the importance of avoiding the use of vague statements in policies,” she said.
Additionally, employers should not simply state that an Internet or blogging policy is not intended to violate employees’ rights and expect that to uphold the scrutiny of the NLRB, she said.
“Employers should consider using examples to further explain what type of conduct is prohibited under a policy as a means of clearly defining expectations and avoiding any suggestion that the policy is intended to infringe on employees’ rights under the act,” Williams-Killackey added.
Boonin and Williams-Killackey were not involved in the lawsuit or administrative proceedings.
Tavern can’t fire workers over Facebook ‘likes,’ appeals court affirms
