The 2d U.S. Circuit Court of Appeals has ruled that an employee’s “like” of a posting by a former employee, and a second employee’s comment on the original posting both were protected activity, and that firing those two employees violated the National Labor Relations Act (NLRA). Three D, LLC v. NLRB, No. 14-3284 (2d. Cir. Summary Order Oct. 21, 2015).

Facts of the case:

  • A former employee of Triple Play Sports Bar and Grille (“Triple Play”) posted on Facebook a negative comment related to the company’s handling of employee payroll taxes;
  • One then-current employee “liked” the posting;
  • A second then-current employee posted a comment regarding the company that included a mild obscenity;
  • Both current employees were fired for violation of the company’s social media policy;
  • The individuals filed an unfair labor practice charge against Triple Play.

Procedural history:

On August 26, 2014, the National Labor Relations Board (NLRB) found that the firings were unlawful and in violation of Section 8(a)(1) of the NLRA because they “interfer[ed] with, restrain[ed], or coerc[ed] employees in the exercise of the rights guaranteed” under the NLRA to engage in concerted activities for the purposes of mutual aid or protection. Triple Play appealed that decision to the Second Circuit.

On appeal, the company argued that the on-line activity was the equivalent of an employee yelling at a supervisor in front of customers – an action found in the past by the NLRB to have supported firing an employee who engaged in an angry and profane-laced tirade toward a supervisor, within earshot of customers.

While conceding that some customers may have viewed the Facebook comments, the Second Circuit disagreed that online activity was the equivalent of a public confrontation with a supervisor, and said that accepting that analysis could lead to “the undesirable result of chilling virtually all employee speech online.”

Electronic communications can be protected activity:

While both the NLRB and the Second Circuit refused to equate the online work-related communication with live interaction between an employee and a supervisor for this decision, the NLRB and federal courts regularly have held that electronic postings, as well as person-to-person communication, can constitute “protected concerted activity” entitled to Section 8 protection – even when, as here, the online postings are done outside of work. Further, the Second Circuit’s expressed concern over “chilling” online speech is a clear indication that the courts recognize the continuing expansion of “protected” status to online communications.

NLRB decisions and court opinions related to Section 8 protection for electronic postings continue to increase. Employers should insure that supervisors and managers are made aware of these decisions and should encourage those supervisors and managers to consult with human resources or legal counsel before taking disciplinary action in response to such communications.