Second Circuit “Likes” the NLRB’s Ruling on Facebook Activity

By Jim Boyan, Esq.
jboyan@pashmanstein.com

A federal appeals court recently affirmed an administrative agency decision that an employer unlawfully discharged two employees for their Facebook activity.    

The Facts

In January 2011, several employees of Triple Play Sports Bar and Grille (“Triple Play”) learned that they owed more than they expected in state income taxes.  On January 31, a former employee posted the following status update on Facebook:  “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!!!!”  One Triple Play employee, Vincent Spinella, “liked” the status update and another, Jillian Sanzone, commented:  “I owe too.  Such an asshole.”  After learning of their comments, Triple Play discharged Spinella and Sanzone for their “disloyal” Facebook activity.

The NLRB’s Decision

Sanzone and Spinella, who were not members of a labor union, filed an unfair labor practice charge with the National Labor Relations Board.  The NLRB ruled that their terminations violated Section 8 (a) of the National Labor Relations Act (“NLRA”).  More specifically, the Board found that the Triple Play unlawfully terminated Sanzone and Spinella for engaging in “protected concerted activity.”

The Second Circuit’s Decision

Triple Play appealed the NLRB’s decision to the Second Circuit Court of Appeals, which covers New York, Connecticut, and Vermont.  The Company argued that Spinella and Sanzone lost the protection of the NLRA because their Facebook activity contained obscenities that were viewed by customers.  Triple Play based this argument on a prior Second Circuit decision, Starbucks, which recognized the “legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”  The court rejected the Company’s arguments and affirmed the NLRB’s decision.  The Second Circuit explained that “[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers” and concluded that the NLRB’s finding that “the Facebook activity at issue here did not lose protection of the [NLRA] simply because it contained obscenities view by customers accords with the reality of modern-day social media use.”

The Bottom Line

This case is important because it is the first time that a federal appeals court has ruled on the issue of whether social media activity can constitute “protected concerted activity” under the NLRA.   Although the Second Circuit’s decision in this case is “non-precedential” it is still a persuasive authority that could impact the outcome of future cases.  This case demonstrates that employers should exercise caution prior to taking an adverse employment action based on an employee’s social media activity.

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