Second Circuit Finds Facebook “Likes” Protected Under NLRA

On October 21, 2015, the Second Circuit clarified in Triple Play Sports Bar and Grille v. National Labor Relations Board that protections provided under Section 7 of the National Labor Relations Act (“NLRA”) encompass Facebook “likes” and comments so long as they are not sufficiently disloyal or defamatory towards the employer’s business. In Triple Play, several employees were involved in a Facebook discussion regarding their co-worker’s discovery that she owed income taxes to the state of Connecticut apparently due to her employer’s payroll tax withholding practices. When the employees’ communications on Facebook were brought to the attention of Triple Play’s owners, the employee who authored the original Facebook post and a co-worker who “liked” the Facebook status were terminated on the grounds of disloyalty. The employees thereafter filed suit and contended that they were wrongfully terminated in violation of the NLRA.

In its review, the National Labor Relations Board (“NLRB”) found that the termination violated Section 8(a)(1) of the NLRA, which provides for protections for employees by prohibiting an employer from interfering with, restraining, or coercing its employees in the exercise of their Section 7 rights. Section 7 of the NLRA guarantees employees “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.”  The NLRB found that Triple Play was unable to meet its burden of showing that the employees’ claims were maliciously untrue and that the obscenities used in the communication were detrimental since customers were able to view it. The NLRB also found that that the comments were made in the context of ongoing dialogue amongst employees about tax withholding as prior communication offline had taken place in the workplace. Thus, neither employee was acting outside of the scope of the NLRA’s protection in their online activities.

On appeal, the Second Circuit upheld the NLRB’s determination and found the employees’ terminations were improper. The Court noted that for a rule to violate Section 8(a)(1), it would have to explicitly restrict actions protected under Section 7. To determine this, the Court relied on a framework set forth by a previous NLRB case which requires a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

The Second Circuit also found that Triple Play’s Internet and Blogging Policy was vague and overbroad, and therefore violated the NLRA. The Court also determined that all Facebook posts hold the possibility of being viewed by clients; here, the comments were not directed at clients and were confined to a dispute amongst employees and Triple Pay. In affirming the NLRB’s decision, the Court noted that the original post did not constitute a defamatory statement and that the subsequent “like” and comment were not made to disparage Triple Play or to undermine its reputation. The Second Circuit recognized while there is a legitimate interest for a company to prevent disparagement statements about its products or services, communication that is connected to any ongoing labor dispute, even if later provide inaccurate, is protected under the NLRA.

For more information regarding this decision and how your business can implement effective Social Media Policies, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.