Let’s share a little about first world problems. Who hasn’t occasionally griped around the water-cooler with a coworker about a payroll error? Is nothing so sure as death and taxes? Cut to the chase----these days this workplace conversation has moved into cyberspace.
Recently, the Second Circuit decided to let the customers of a Connecticut sport bar do the math about its employees. Resolving a controversy over the firing of two workers who posted comments and “likes” on Facebook about the bar’s mistakes in payroll tax withholding, the appellate court upheld an NLRB decision finding that Triple Play Sports Bar and Grille violated Section 8(a)(1) of the National Labor Relations Act when it discharged employees who engaged in concerted activity on social media. Three D, LLC v. NLRB, 204 LRRM 3514, 2015 BL 345811 (2d. Cir., No. 14-3284, summary order, 10/21/2015).
Triple Play argued on appeal that the online speech of its employees lost protection under the National Labor Relations Act because it contained obscenities that were viewed by the employer’s customers.
The NLRB had determined that the only employee conduct at issue was one employee’s like of a Facebook friend’s initial status update and a second employee’s reply containing obscene language. The Facebook using coworker wailed about his payroll woes and management calculation error, saying “they can’t even do the tax paperwork correctly!!!Now I OWE money… Wtf!!!” His brief post garnered a quick “like,” and a third employee also replied, “I owe too. Such an asshole.”
Court LOLs at Employer’s Argument, Gives <3 to Workers’ Claims
While the unfiltered candid remarks may have been a little embarrassing to Triple Play, the court said they were not malicious or defamatory. The online speech did not lose its protected status under the NLRA merely because the Facebook posts contained obscenities. At most, one employee fired for “liking” a Facebook post had endorsed a coworker’s claim that Triple Play had erred in her tax withholding in the context of an ongoing dialogue among employees about tax withholding.
Although the social media posts were public, the status updates and “likes” shared among employees were not directed towards customers. An administrative law judge found that the employees’ discussion began in the workplace and moved online. These social media postings did not even mention Triple Play’s products or services, much less disparage them, and were thus not so disloyal or defamatory as to lose the protection of NLRA.
Finally, the court held that Triple Play had no basis to assert that the coworker’s “WTF” Facebook comment was maliciously untrue.
Honestly, a bad Yelp review might have been more damaging to the sports bar’s reputation.
A word to the well-connected employee, before sending a volley of online workplace complaints to all your Facebook friends, remember to adjust your privacy settings!
Get up-to-date news and expert analysis from respected practitioners and Bloomberg BNA's legal editors, and practical research tools with a free trial to the Labor & Employment Law Resource Center .
Notify me when updates are available (No standing order will be created).
Put me on standing order
Notify me when new releases are available (no standing order will be created)