Second Circuit Upholds NLRB's Triple Play Decision, Expanding Section 7 Protections For Employees' Social Media Activity

Obscenities alone—even when viewed by an employer's customers—do not deprive employees engaged in protected concerted activity of the National Labor Relations Act's ("NLRA" or the "Act") protections. So held the U.S. Court of Appeals for the Second Circuit when recently affirming the National Labor Relations Board's ("NLRB" or "the Board") decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The court also affirmed the Board's decision to require an employer to meet a high standard of proof to justify terminating employees who make critical, and even false, statements about the employer while engaging in Section 7 activity in social media. Consequently, Triple Play has broadened employees' ability to use social media to complain about work with impunity.

Since issuing its ruling, the Second Circuit has denied the Board's request to publish its unpublished summary order so that it can serve as precedential authority. Regardless of the Second Circuit's decision not to publish this decision, employers should take heed of this important case, particularly when evaluating an employee's social media activity.

The NLRB's Decision in Triple Play

The Board's decision in Triple Play centered on the employer's—Triple Play Sports Bar and Grille, a non-union bar and restaurant—termination of two employees for their Facebook discussion about the company's tax-withholding practices. A former employee initiated the discussion by posting the following status update to her Facebook page:

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 current Triple Play employees and a customer posted sympathetic comments. Then, a coworker selected the "Like" option under the initial status update. In response to a subsequent comment by the initial poster accusing one of Triple Play's owners of criminal conduct, a second employee added: "I owe too. Such an asshole." After learning about the Facebook discussion from another employee, Triple Play terminated both employees.

On review, the Board agreed with the Administrative Law Judge's finding that the "Like" and the second employee's comment constituted protected concerted activity under Section 7 of the NLRA, and Triple Play's termination of the employees based on those posts was unlawful. The Board's decision clarified that off-duty social media exchanges that disparage the employer should be...