Facebook firingAn employer illegally fired two employees for criticizing the company on Facebook. This decision comes from the U.S. Court of Appeals for the Second Circuit, which affirmed a National Labor Relations Board decision (NLRB). Three D, LLC v NLRB (10-21-2015). This decision also highlights the need to meaningfully evaluate conduct giving rise to employee discipline, including conduct taking place through social media.

Facebook Criticism of the Employer

Three D, LLC did business as Triple Play Sports Bar and Grille. One of its former employees (LaFrance) posted a “status update” on her Facebook page that Triple Play’s owners failed to properly handle her payroll taxes resulting in her having to pay more income taxes than she anticipated. A current employee, (Spinella) added a Facebook “like” to LaFrance’s posting. Another current employee, (Sanzone) also added to LaFrance’s post stating, “I owe too. Such an a**hole.” In response to these Facebook postings, Triple Play fired Spinella and Sanzone.

The NLRB found these employees were engaged in a work-related discussion that was protected by the National Labor Relations Act. Specifically, the NLRB found Triple Play had violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by discharging these two employees for their Facebook activity. The NLRB also found that Triple Play violated Section 8(a)(1) of the NLRA by maintaining an overbroad Internet/Blogging policy.

Court Affirms NLRB Decision

Three D did not fare any better on appeal where the Court affirmed the NLRB’s decision. In doing so, the Court rejected Triple Play’s argument that because Sanzone’s and Spinella’s Facebook activity contained obscenities and were viewed by customers that the NLRB should have found that this activity lost the protection of the NLRA. Instead, the Court ruled:

The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw Spinella’s “like” or Sanzone’s statement could evaluate the message critically in light of that dispute.

Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand … the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern‐ day social media use.

As to the employer’s social media/blogging policy: (i) it did not expressly restrict the exercise of Section 7 rights; (ii) it was not promulgated in response to union activity;  and  (iii) it was not applied to restrict Section 7 rights. However, the employer’s policy restricted any discussions about the employer’s terms and conditions of employment deemed ‘inappropriate’ by [the employer].” For this reason, the Court also agreed with the NLRB’s decision that the social media/Internet policy also violated the employees’ rights under the NLRA.

Take Aways

Every company – including non-union employers – are subject to the NLRA. In this regard, the ruling is a reminder for employers that there is no such thing as a “safe” termination or disciplinary action. This includes when the at-issue conduct occurs away from the workplace through social media.

Employers also need to carefully evaluate when employees are disciplined for social media comments. Comments involving an ongoing labor dispute or that provide mutual support or seeking group action in relation to employment-related conditions are likely to be viewed as involving employee rights under the NLRA, which cannot be lawfully subject to employer discipline. Further many states, including Michigan, have social media employment laws that may restrict the use or investigation of private social media accounts.

For more information about employee social media issues, as well as investigating employee misconduct, contact Michigan employment attorney Jason Shinn.