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The National Labor Relations Board Rules That Disloyal Comments On Social Media May Be Protected Under The National Labor Relations Act

Yarelyn Mena and Edgar M. Rivera, Esq.

In Three D, LLC (Triple Play), the National Labor Relations Board (NLRB) ruled that Section 7 of the National Labor Relations Act protected employees from termination where they made disloyal social media speech while discussing the terms of their employment.  This decision gives clarity regarding how Facebook “likes” and thread comments are to be treated where the underlying post is protected by Section 7.

In this case, Triple Play Sports Bar and Grille (Triple Play) incorrectly calculated several of its employees state income tax withholdings, resulting in employees owing additional state taxes.  After employees complained, Triple Play’s owners organized a meeting to discuss the issue. Prior to the meeting, a former, though affected, employee, Jamie LaFrance, posted on her personal Facebook account, “[Triple Play] can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” This posting led to current Triple Play employees discussing a plan to address the tax issues at the meeting.

The following actions form the factual basis of the dispute: (i) Triple Play’s cook, Vincent Spinella, “Liked” the post, and (ii) Triple Play’s waitress, Jillian Sanzone, commented on the post, calling one of the owners an “asshole.”  One of the owner’s sister, who was an employee of Triple Play, showed the owners LaFrance’s Facebook post and the subsequent comments, which the owners interpreted to mean that Spinella and Sanzone no longer wanted to work at Triple Play, resulting in their termination.

Section 7 protects employees’ “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” by prohibiting retaliation against two or more employees engaging in such protected conduct. Triple Play did not dispute that Section 7 protected the underlying Facebook discussion of the tax issue; the question before the Board was whether Spinella’s “like” and Sanzone’s calling one of the owner’s an “asshole” were protected activities, which Triple Play argued they were not.

The Board disagreed with Triple Play, analyzing the at-issue social media exchange under two different tests which balance an employee’s right to engage in Section 7 activity against the employer’s interest in protecting its reputation.  The first test, known as the Jefferson Standard, applies to cases where an employee makes a defamatory public statement about their employer’s product or services.  The Board found that neither Spinella’s nor Sanzone’s activity on social media was a “public statement” because discussions on personal Facebook accounts are equivalent to a “conversation that could potentially be overheard by a patron or other third party.” Moreover, there were no statements concerning Triple Play’s product or services. Therefore, these comments were protected.

The second test considers whether the alleged defamatory statement was (i) knowingly false or (ii) made with reckless disregard for the truth. The Board found that Spinella’s “like” on the Facebook post expressed agreement for the initial Facebook post addressing the tax concerns and not towards the comments that followed targeting Triple Play’s owner individually and that Sanzone’s comment calling Triple Play’s owner an “asshole” was not a statement of fact but rather an opinion. As such, Triple Play failed to show that Section 7 did not protect Spinella’s and Sanzone’s actions.

It is important for employees to be able to engage freely in discussions about their employment with others even if that means airing their complaints. Employees must understand Section 7’s protection when engaging in discussion on a public medium that may be visible to employers.

If you believe your employer unlawfully terminated you, please contact The Harman Firm, LLP.

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