By: Jeffrey Berman and Monica Rodriguez

On October 21, 2015, the Second Circuit Court of Appeals upheld the ruling of the National Labor Relations Board (“Board”) decision in Triple Play Sports Bar and Grill, 361 NLRB No. 31 (2014). The employer, Triple Play, had appealed the Board’s decision finding that it had violated Section 8(a)(1) of the National Labor Relations Act (“Act”) when it: (1) discharged several employees for their Facebook activities, and (2) maintained an overbroad Internet/Blogging policy.

The court issued its decision in a Summary Order, which does not have precedential effect. The NLRB has filed a motion requesting that the Second Circuit publish the opinion to give it precedential authority.

Facebook Activity

So what was the employee conduct at issue? One of Triple Play’s employees posted the following on his 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 of the employee’s Facebook friends and other Triple Play employees responded to the post.

One of the Triple Play employees responded with a “like” to the original posting. Another employee commented “I owe too. Such an asshole.” The Board found that the “like” and the comment constituted protected concerted activity under the Act since they involved four current employees and were part of an ongoing sequence of discussions that began in the workplace about Triple Play’s calculation of the employees’ tax withholding.

The court then discussed whether the Board correctly found that the Facebook activity was so disloyal or defamatory as to lose its protected status under the Act. Triple Play argued that the conduct was not protected by the Act because the comments could have been read about current or potential customers. The Board and the appellate court rejected Triple Play’s argument, noting that accepting it would “lead to the undesirable result of chilling virtually all employee speech online.” The appellate court further noted that the Board’s determination that the “obscenities viewed by customers accords with the reality of modern-day social media use.”

Triple Play also argued that the conduct was not protected because the “like” and the comment were made even though the employees knew that initial posting was false. The appellate court agreed with the Board that the communications were not disparaging, but instead “disclosed the ongoing labor dispute over income tax withholding,” and thus, were protected. The court further found that even if the employees’ claims regarding the tax withholdings later proved inaccurate, such inaccuracies did not remove those statements from protection of the Act.

Internet/Blogging Policy

The other issue before the court was whether employees would reasonably construe the policy language in Triple Play’s handbook to prohibit Section 7 activity. Triple Play’s policy provided:

[W]hen internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.

The Board found that the “employees would reasonably interpret [the] rule as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by [Triple Play].” The appellate court summarily affirmed the Board’s decision without much explanation.

Impact on Employers

The take away for employers is to be wary of disciplining employees for communications made on social media. In this case, the Board (and the court) excused the profane language used by employees on the grounds that it was “concerted” activity regarding an issue at work. Employers should also review their policies regarding internet and blogging to ensure that they are not “overbroad” and could be interpreted as prohibiting discussions about the terms and conditions of employment. If you have any questions regarding your workplace’s social media policies or practices, please contact the authors, or another Seyfarth attorney.