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eLABORate: Second Circuit Affirms NLRB's Decision that Facebook "Likes" and Comments are Protected by the National Labor Relations Act

October 23, 2015

Although Facebook and similar social media sites represent novel platforms for employee communications, employees’ online conduct often maintains the established protections of the workplace. To that end, the National Labor Relations Board (“NLRB”) has zealously attempted to regulate and police employers’ social media policies and responses to employees’ social media activity, and recently obtained a critical ruling from the Second Circuit affirming its position.

In Three D, LLC v. NLRB, No. 14-3284 (2d. Cir. Summary Order Oct. 21, 2015), the Second Circuit affirmed the NLRB’s decision that two employees’ Facebook activities—including a “like” of another employee’s status update disparaging their employer—constituted protected, concerted activity under the National Labor Relations Act (“NLRA”). As a result, the employer’s decision to terminate the two employees for their Facebook activity was unlawful. 

The incident started when several employees learned that they would owe more money in state income taxes than anticipated because the employer, a sports bar, mismanaged payroll taxes. A former employee posted a Facebook status update that exclaimed, “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!!!!” In response, a current employee used Facebook’s “like” feature to endorse the post and a second employee posted a comment stating, “I owe too. Such an asshole.”

The sports bar terminated both employees, and the NLRB found that the terminations violated Section 8(a)(1) of the NLRA by “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed” by the NLRA to engage in concerted activities for the purposes of mutual aid or protection. The NLRB also found that the sports bar violated Section 8(a)(1) by maintaining an overbroad Internet/Blogging policy. The sports bar appealed the decision to the Second Circuit.

The sports bar argued that the employees’ Facebook activity was unprotected under the NLRA and cited NLRB v. Starbucks Corp., 679 F.3d 70 (2d Cir. 2012), in which Starbucks fired an employee who engaged in an angry and profane-riddled tirade with a supervisor inside a store, within earshot of customers. In Starbucks, the Second Circuit remanded the NLRB’s decision that the termination was unlawful because the NLRB’s decision had disregarded Starbuck’s legitimate concern to not “tolerate employee outbursts containing obscenities in the presence of customers.” The sports bar argued that the employees’ Facebook activity, similar to the Starbucks employee’s tirade, involved profanities in the presence of customers (i.e., other Facebook users who could see the comments) and should lose any NLRA protections.

The Second Circuit, however, explained that the Starbucks decision was remanded because the NLRB had not considered the employer’s concern regarding obscenities in front of customers, but did not establish a bright line rule. In the instant case, the Second Circuit held that the NLRB had considered these factors and determined that the discussion was not directed toward customers and did not reflect the sports bar’s brand. Moreover, if the sports bar’s position were accepted and Starbucks applied because the Facebook discussion took place “in the presence of customers,” it would result in an undesirable chilling of “virtually all employee speech online.”

Recognizing that any Facebook post by employees could be viewed by customers, the Second Circuit affirmed the NLRB’s decision that the firings were unlawful because the communications were made to seek and provide mutual support looking toward group action, and were not made to disparage the sports bar or undermine its reputation, even though some customers may have viewed the Facebook comments. The decision demonstrates that social media communications, although transmitted in an electronic forum outside of work, will often be given the same level of protection as workplace communications when applying the NLRA.

For employers, the key takeaway is the Second Circuit’s emphasis on the context surrounding employee Facebook activity that implicates the terms and conditions of employment. Untrue or false statements will lose protection under the NLRA, but truthful statements about work conditions may warrant NLRA protection, even if posted through Facebook or containing profanities. An employer contemplating discipline for an employee’s Facebook conduct must examine, among other things, the employment issues addressed in the communication, the audience of the communication, and the veracity of the communication to determine if the post could be protected conduct.

Additionally, the Second Circuit upheld the NLRB’s other ruling that the sports bar’s Internet/Blogging policy violated Section 8(a)(1) because employees could reasonably construe the policy as prohibiting any online discussions about the terms and conditions of employment. This decision is yet another reminder that employers should review their policies to determine whether any social media restrictions would potentially run afoul of the NLRA by limiting or chilling employees’ NLRA rights. Social media websites may not command the same decorum or strictures of the workplace, but still represent a protected arena for employees engaging in commentary of mutual concern and remain an enforcement priority for the NLRB.