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NLRB Protects Facebook Posting

The overwhelming popularity of Facebook has meant that what was once “social” media has now spilled over into the professional world and now has legal implications related to employers and employees. Keeping abreast of rulings in this realm is critical for employers to ensure their practices are in line with case law.

NLRB Protects Facebook Posting: The Case

Bartender/waitress Jillian Sanzone and cook Vincent Spinella, both employed at Triple Play Sports Bar and Grille, were fired after participating in a Facebook posting by Jamie LaFrance, a disgruntled former employee of the establishment.

LaFrance posted: “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!!!!”

Spinella clicked the “Like” icon under the comment while various employees and customers commented on the posting. LaFrance posted a follow-up comment that one of the owners is “such a shady little man. He prolly [probably] pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there.”

Sanzone then commented: “I owe too. Such an asshole.”

Sanzone and Spinella responded to their termination by filing charges with the National Labor Relations Board (NLRB) alleging that Triple Play violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging them in retaliation for their protected concerted activities. (“Concerted activities for the purpose of mutual aid or protection” are protected from employer retaliation under NLRA.)

Triple Play’s assertion was that the terminated employees had adopted defamatory and disparaging comments made by other workers and therefore lost the NLR’s protection. They also contended that the fired employees could be “held responsible for any of the other comments posted in this exchange.”

The Decision:

In 2012, an administrative law judge (ALJ) ruled that the discharges were unlawful because Sanzone and Spinella were engaged in concerted activity when they had a discussion with other workers regarding the calculation of their tax withholdings.

The ALJ’s ruling was affirmed in August 2014 by the NLRB. According to their opinion, the fact that the discussion took place on social media did not lessen the protection for the employees.

The NLRB also invalidated Triple Play’s social media policy banning “inappropriate discussions” about the employer, co-workers and management. According to the Board, this might inhibit employees from properly discussing terms and conditions of employment.

According to the NLRB decision, “We agree with the judge that the discharges were unlawful. We also adopt the judge’s findings that the respondent violated the act by threatening employees with discharge for and interrogating employees about their Facebook activity, as well as by informing employees they were being discharged because of their Facebook activity. In addition, we adopt the judge’s finding that the Respondent unlawfully threatened legal action for engaging in that activity.”

The Take-Away:

The decision should serve as a reminder of the dangerous nature of firing employees based on off-duty Facebook activity. Employees do not lose the protections of the NLRB when participating in protected concerted activity outside the workplace, including on social media. Also, the threshold for establishing protected concerted activity is low. According to the case, it can be triggered by merely clicking on Facebook’s “like” icon.

To discuss a legal issue related to the National Labor Relations Act, please contact us online or call our offices at (561) 653-0008 to learn how we can help you. At Scott • Wagner and Associates, P.A., our approachable and knowledgeable attorneys are dedicated to providing skilled legal representation for your unique situation.   

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* Cathleen Scott is licensed to practice in Florida only.

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