The National Labor Relations Board ("NLRB") got a big boost from the Second Circuit when it issued its decision in Triple Play v. National Labor Relations Board.  The NLRB had ruled that certain actions taken by employees on Facebook were protected concerted activity.  Triple Play had unsuccessfully argued that the employees use of profanity took the Facebook comments outside of the National Labor Relations Act ("NLRA") protection.  On October 21, 2015, the Second Circuit affirmed the NLRB's decision.

I'm going to go against the grain and say that the activity that the employer was complaining about, the profanity, was not so egregious as to strip employees of the NLRA's protection.  What to me is a more controversial part of the decision is the NLRB's assertion that employees "likes" of the post was also protected activity.

A little context is probably necessary to see what I mean.  The NLRB Board Decision was focused on two employees who participated in a Facebook discussion critical of the employer.  The initial post that started the discussion was not posted by these two employees.  The initial post made by Jamie LaFrance read as follows:

"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!!!!"

Several employees, customers and friends of LaFrance commented on the post.  Employees Spinella and Sanzone participated in that Facebook discussion in very minimal ways.  The discussion continued after the initial post with LaFrance stating she was going to the Labor Board and others expressing sympathy for her plight and stating that they owed money as well.  Immediately after LaFrance posted "It's all Ralph's 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,"  Spinella "liked" LaFrance's post.

The discussion continued and Sanzone posted "I owe too. Such an asshole."  This one post and Spinella's "like" of the post were the reasons that Triple Play terminated Sanzone and Spinella.

First, it is clear that the employees are talking about protected activity, i.e., terms and conditions of work, namely that their payroll taxes were not being correctly deducted.  This point was conceded by Triple Play. The question was whether the comments posted by Sanzone and others were so defamatory and disparaging to take away the NLRA's Section 7 protection.

Although the whole exchange is not reproduced here, the vast majority of the comments are about the failure to correctly deduct taxes.  There are a few swear words but nothing that would make a nun blush.  So, not surprising that the Second Circuit affirmed the ruling as to Sanzone's comment.

What is troubling is the blind acceptance that merely "liking" a comment means the employee is engaged in concerted activity. That is the important lesson for employers to remember.

It is tempting to react quickly to negative comments posted by employees online, especially with the speed with which such comments could go viral and create major public relations issues for a company.  In light of the Triple Play ruling employers are reminded to take a step back and thoroughly analyze whether it is appropriate to discipline an employee for an online post.

Franchisors should also keep this in mind before demanding that franchisees take action against their employees for posting disparaging comments about the franchise.  This is especially true as the NLRB has been actively seeking to expand joint employer liability.

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