Jillian Sanzone worked for Three D, LLD, d/b/a Triple Play Sports Bar and Grille, as a waitress and bartender and Vincent Spinella worked as a cook.  The employees realized that they owed more money in State income taxes than expected and complained to the employer.  Sanzone, Spinella, and another former employee, Jamie LaFrance, began posting about the situation on Facebook.  LaFrance’s initial status update stated, “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!!!!”  Sanzone added to the comment in stating “I owe too. Such an asshole.”  Spinella then “liked” LaFrances initial status update.  The employer terminated Sanzone and Spinella based on the posts, and that Spinella “liked” the post.  The NLRB held that the employee’s engaged in protected concerted activity and the employer violated their rights under the Act in terminating them.  On October 21, 2015, the United States Court of Appeals for the Second Circuit upheld the NLRB’s ruling in Three D, LLC v. National Labor Relations Board.  Here are five lessons employers should learn from this case:

1.     The NLRB can enforce compliance issues even for non-union employers

Section 7 of the 1935 National Labor Relations Act (the “Act”) guarantees that “[e]mployees shall have the right to self‐organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection . . . .” 29 U.S.C. § 157. Section 8(a)(1) of the Act protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7] . . . .” 29 U.S.C. § 158(a)(1).  This applies to unionized and non-unionized employers alike.  For example, the employer in the instant case was not unionized.

2.     Employees may engage in “protected concerted activity”

The NLRB defines “protected concerted activity” as follows:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

Because the Facebook comments were found to be protected concerted activity, the employer’s decision to terminate the employees based on these comments and Facebook “like” of the comments was held to be in violation of the Act.

3.     Employee’s Facebook like of the comments can be a protected activity

Neither party in this case contended that the act of “Liking” a Facebook post could not be a protected activity.  Indeed, the NLRB, and the Second Circuit Court hearing the appeal recognized that in today’s workplace, social media comments and discussions are typically where protected concerted activity occurs.  The NLRB held that the comments in this case posted on Facebook were protected comments because it involved current employees and was “part of an ongoing sequence of discussions that began in the workplace about [the employer’s] calculation of employees’ tax withholding.”

4.     Not all activity is protected

While employees have the right to comment and discuss work related complaints on social media, this right is not unlimited.  An employee’s communications with the public may lose the protection of the act if they are sufficiently disloyal or defamatory.

The NLRB held that the posts in this case did not lose this protection because the comments “did not even mention [the employer’s] products or services, much less disparage them” and that the employee’s claims of insufficient tax withholdings were “maliciously untrue.”  And Sanzone’s characterization of her employer as an “asshole” in connection with the asserted tax-withholding errors “cannot reasonably be read as a statement of fact; rather, Sanzone was merely (profanely) voicing a negative personal opinion of [her employer].”

5.     Employers need to take care in drafting their internet/blogging policies to ensure it does not run afoul of the NLRB or state law. 

The NLRB also found that the company’s social media policy violated the law.  The company’s policy stated the following:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or 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. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The NLRB found that this policy violated employee’s rights under Section 7 of the Act because, “…we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’….”  This finding was despite the policy’s savings clause.  The ruling leaves many questions of what type of policy would be upheld by the NLRB, and is a point of caution for employers.

Photo: Sam Michel