Employee Facebook Activity Not Disloyal Enough To Be Grounds For Valid Discharge

The Second Circuit recently affirmed a National Labor Relations Board (Board) decision that Triple Play Sports Bar and Grille illegally fired two employees for Facebook posts about their employer’s handling of payroll tax withholding. Three D, LLC v. NLRB, 2d Cir., No. 14-3284, 10/21/15.
In a Facebook status update a former employee posted “[m]aybe 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!!!!” A current employee “liked” the post. Another current employee commented, “I owe too. Such an asshole.” The Board considered the Facebook posts concerted activity because it involved several current employees and was part of an ongoing sequence of discussions that began in the workplace about the employer’s calculation of employee’s tax withholding. Under the National Labor Relations Act (NLRA or Act), concerted activity is protected; employers cannot discipline or discharge employees for protected concerted activity.
Employees are not permitted to say whatever they want to about their employer on Facebook. An employee’s rights under the Act are balanced against an employer’s interest in preventing disparagement of its products or services and protecting the reputation of its business. Under this balancing test, which begins somewhat skewed towards employee rights, communications lose the protection of the Act if they are sufficiently disloyal or defamatory. A disloyal communication is one which is unconnected from any ongoing labor dispute. A communication is considered disparaging only if it is maliciously false, meaning it was done with knowledge of its falsity or regardless disregard of the truth.
The Board concluded that the employees’ Facebook activity was not disloyal because the comments at issue did not mention Triple Play’s products or services. That was technically true; it just impugned the competence of owners and management. But publically embarrassing one’s employer is not grounds for discharge these days. The Board also found there was no evidence that the comments at issue were defamatory (i.e., maliciously untrue).
On appeal Triple Play argued that the employees’ Facebook activity lost the protection of the Act because the posts used obscenities that were seen by customers. The employer relied on the decision in NLRB v. Starbucks, 679 F.3d 70 (2d Cir. 2012), which dealt with an employee’s obscenity laden tirade against a supervisor that was overheard by customers. In Starbucks, the Second Circuit remanded the Board’s order for reconsideration of the correct standard to apply when analyzing an employee’s use of profanity in the presence of customers.
Triple Play’s reliance on Starbucks was deemed misplaced, however, “because the Starbucks panel premised its decision on a finding that the Board had disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.” In contrast, the Board’s Triple Play decision explicitly recognized an employer’s legitimate interest in preventing the disparagement of its products or services and protecting its reputation, even though it found that the employees’ Facebook activity was not disparaging or disloyal enough to lose the protection of the Act.
Triple Play also argued that Starbucks should apply because the Facebook discussion took place in the presence of customers (i.e., online). The court rejected this position, which it said “could lead to the undesirable effect of chilling all employee speech online,” because “almost all Facebook posts by employees have at least some potential to be viewed by customers.” The court concluded, “[t]he Board’s decision that 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.”