Second Circuit Backs NLRB on Facebook Firings

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By Lawrence E. Dubé

Oct. 21 — A Connecticut sports bar illegally fired two employees who criticized their employer during an online Facebook discussion, the U.S. Court of Appeals for the Second Circuit ruled Oct. 21, agreeing with a National Labor Relations Board decision.

The employer, doing business as Triple Play Sports Bar and Grille, fired the workers after one commented on Facebook that the company mismanaged payroll tax withholding and a second employee added a Facebook “like” to the posting. The board found employees were engaged in a work-related discussion that was protected by the National Labor Relations Act.

Judges Chester J. Straub, Barrington D. Parker, and Richard C. Wesley rejected the employer's claim that the workers' use of obscenities cost them the protection of the federal labor law. The board found the firings were illegal, and the Second Circuit said the board's ruling “accords with the reality of modern-day social media use.”

The ruling may disappoint managers who believe publicly embarrassing an employer should be grounds for discharge. The appeals court rejected Triple Play's argument that airing complaints on an online resource like Facebook was akin to yelling at a manager in front of customers.

Online Dialogue Led to Firings, NLRB Decision

According to the court and the board's unfair labor practice decision, several Triple Play employees learned in January 2011 they would owe more in state income taxes than they had anticipated. A former employee posted a “status update” on her Facebook page complaining that Triple Play's owners failed to handle payroll withholding taxes properly.

Bartender Vincent Spinella used Facebook's “like” feature to endorse the status update, and he later told Triple Play's owners that he stood behind the comments employees made during the Facebook discussion. Waitress Jillian Sanzone posted, “I owe too,” and used a profanity to refer to the owners.

The board found the discharges were unlawful (361 N.L.R.B. No. 31, 200 LRRM 1569 (2014)), and the employer sought review.

Triple Play Relied on Starbucks Decision

Triple Play argued the employees' Facebook activity was unprotected, citing NLRB v. Starbucks Corp., 679 F.3d 70, 193 LRRM 2161 (2d Cir. 2012) (30 HRR 512, 5/14/12). Starbucks fired an employee after he engaged in an angry obscenity-laced confrontation with a supervisor inside a store, within earshot of customers.

Finding the board “improperly disregarded the entirely legitimate concern” of Starbucks “not to tolerate employee outbursts containing obscenities in the presence of customers,” the appellate court remanded the case for the board to determine what standard it will apply in the context of activity occurring in the presence of customers.

Triple Play argued that Starbucks suggested that “most or all” employees using obscenities in the presence of customers would lose their NLRA protection, but the Second Circuit said the earlier case was remanded because board members had seemingly disregarded the employer's concern without offering an analysis or explanation for doing so.

In Triple Play, the court said, the NLRB discussed and applied board and court precedents in concluding that Spinella and Sanzone did not engage in disloyal conduct that would permit the employer to fire them.

The appeals court said “accepting Triple Play's argument that Starbucks should apply because the Facebook discussion took place ‘in the presence of customers' could lead to the undesirable result of chilling virtually all employee speech online.”

Observing that “[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers,” the court affirmed the board decision on the Triple Play firings.

Triple Play declined through its attorney to comment on the court's decision. A request for comment by the Service Employees International Union, which filed an amicus brief supporting the board, wasn't immediately returned.

Yamin & Grant represented Three D LLC. NLRB attorneys represented the board.