September 4, 2014
Good news, Facebook users with jobs: The National Labor Relations Board (NLRB) recently decided that several posts and one “Like” made on Facebook by employees that were disparaging to the employer were protected under the National Labor Relations Act (NLRA), and subsequently reversed the employees’ terminations that were the result of those acts.
Now, don’t get too excited and start ragging on your boss all over Facebook. This protection only applies in certain circumstances.
In the case at issue, Three D, LLC (Triple Play), 361 NLRB No. 31 (2014), involved a non-union bar in Watertown, Connecticut (Triple Play Sports Bar and Grille). In January 2011, while preparing their tax returns, two employees discovered that they owed more in taxes to the state of Connecticut than they had expected.
One of these employees, Jillian Sanzone, discussed this at work with other employees, and some employees then complained to the bar’s ownership, who then planned a staff meeting for February with its payroll provider to discuss the concerns.
On January 31, Jamie LaFrance, a former employee who left Triple Play in November of 2010, posted the following status update on her Facebook page:
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!!!!
The post elicited several replies, including some from a customer and a current employee. LaFrance also replied in this conversation, stating:
It’s all Ralph’s [(one of the owners)] fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.
At this point, Vincent Spinella, a current employee, selected the “Like” option under LaFrance’s initial status update.
Several other comments followed, including another from LaFrance stating the following:
Hahahaha he’s such a shady little man. He prolly 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.
The next comment was from Sanzone, one of the employees that had initially discovered the discrepancy:
I owe too. Such an a[**]hole.
The other co-owner, Thomas Daddona, learned about the Facebook discussion from his sister, who was a Facebook friend of LaFrance. On February 2, when Sanzone came to work, Daddona told her she was being discharged because she was not loyal enough because of her Facebook comment. The next day, when Spinella reported for work, he was called into the owners’ office, where Daddona and DelBuono were waiting; the Facebook comments from LaFrance’s account were displayed on a computer screen in the office. After asking Spinella if he “had a problem with them, or the company,” DelBuono and Daddona proceeded to interrogate him about the Facebook discussion and the meaning of his “Like” selection. Spinella was then told that, because he “liked the disparaging and defamatory comments,” it was “apparent” that Spinella wanted to work somewhere else. Interestingly, DelBuono also said that his attorney told him that “he should discharge anyone involved in the Facebook conversation for defamation.”
The NLRB just reversed those terminations with a finding that they were both protected under the NLRA, and here’s why:
The Board found that the Facebook discussion was related to an “ongoing labor dispute” about the bar owners’ tax-withholding practices, and was thus protected speech under the Act. And because the comments were disparaging about the ownership, rather than the bar’s products or services – and because they were not made in a public forum – which, in this case, would have been somewhere like the company’s own Facebook page.
It’s interesting to note that the board didn’t take LaFrance’s privacy settings too much into account; rather, the determination of whether these comments would be considered “public” hinged on whether they were directed at the general public when they were made.
In regards to Spinella’s “Like,” the Board determined that such expression is also protected, and that the “Like” is limited to the post to which it was attached.
Regardless of these limitations, the Board’s decision offers broad protections for employee activity on Facebook, even those comments disparaging of management or ownership – so long as the proper conditions are met.