NLRB's Recent Triple Play Decision Tackles Two Critical Social Media Issues For Employers

With the intersection between cutting-edge social media and the Depression-era National Labor Relations Act (NLRA or the Act) still relatively new, employers are looking for answers to some fundamental questions when it comes to regulating employees' off-duty social media posts about work. The National Labor Relations Board's (NLRB or the Board) recent decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014), answered two of those questions: (1) How far can employees go when posting social media content protected under Section 7 of the NLRA before their posts lose that protection?; and (2) Can employees who do nothing more than click on the ubiquitous thumbs-up icon to "Like" social media content claim the protections of Section 7 of the NLRA? In addition to answering these two critical questions, Triple Play provides useful guidance for employers on drafting a social media policy without raising a red flag for the NLRB.

The Board answered the above questions in response to the firing of two employees by Triple Play Sports Bar and Grille (the employer) for alleged disloyalty shortly after the owners viewed an exchange on Facebook among the employees, co-workers, a former employee, and customer that was highly critical of the owners. In its ruling, the Board (a) set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7, (b) determined that the "Like" in that case was protected, (c) reversed the employee's firing, and (d) found a key provision in the employer's social media policy to be unlawfully overbroad. While the employer in Triple Play suffered defeat, the Board's decision, for the reasons discussed below, should help other employers avoid a similar fate.

The Facebook Discussion and the Employees' Discharge

The employer is a non-union bar and restaurant in Watertown, Connecticut. While preparing their tax returns in January 2011, several employees discovered that they owed money to the state of Connecticut. Suspecting a mistake by the bar's owners when calculating their state tax withholding, some employees complained. The owners organized a staff meeting with the payroll provider to discuss the issue.

Before this meeting, Jamie LaFrance (LaFrance), a former employee who had recently left employment with the employer started a Facebook conversation by posting the following status update:

"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 comments followed in which a customer and a current employee sympathized.

LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state's "labor board." At that point, a current employee, Vincent Spinella (Spinella), selected the "Like" option under LaFrance's initial status update.

As the Facebook exchange continued, LaFrance verbally attacked one of the owners:

"Hahahaha he's such a shady little man. He prolly [sic] pocketed it all from all our paychecks."

Another current employee, Jillian Sanzone (Sanzone), followed this statement by posting: "I owe too. Such an asshole." More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.

After learning about the Facebook exchange from one of LaFrance's Facebook friends, a current employee who happened to be the sister of...