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Labor and Employment Law Alert: Decision Protects Employees' Online Speech

October 29, 2015

Last week, the Second Circuit Court of Appeals upheld a 2014 decision of the National Labor Relations Board ("NLRB") that a Watertown sports bar had illegally fired two of its employees over a Facebook post. The court held that the employees' termination violated Section 8(a)(1) of the National Labor Relations Act (the "Act"), which prohibits employers from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed" under Section 7 of the Act. Section 7 allows employees to self-organize or join labor groups "and to engage in other concerted activities for . . . mutual aid or protection."

In 2011, an employee of Triple Play Sports Bar and Grille used Facebook's "like" button to respond to a former employee's post criticizing Triple Play's handling of payroll withholding taxes. A second employee posted in response, "I owe too. Such an asshole." The NLRB ruled that the online conversation was "concerted" pursuant to Section 7 because it consisted of current workers and was "part of an ongoing sequence of discussions that began in the workplace about [Triple Play's] calculation of employees' tax withholding."

Triple Play argued that the employees' online activity was not protected because it "contained obscenities that were viewed by customers." Triple Play relied on an earlier case, NLRB v. Starbucks Corp., 679 F.3d 70 (2d Cir. 2012), in which the Second Circuit found that employers have an "entirely legitimate concern . . . not to tolerate employee outbursts containing obscenities in the presence of customers." However, the court was reluctant to find that the Facebook post happened "in the presence of customers" because that could have a "chilling effect" on the employees' online speech. It also mattered to the court that the post was made on a private Facebook account versus on the restaurant's Facebook account. The court agreed with the NLRB that the Facebook post is protected by the Act, even if it contains obscenities and is viewed by customers. The decision, it said, "accords with the reality of modern-day social media use."

The Second Circuit also addressed whether the "Facebook activity was so disloyal or defamatory as to lose the protection of the Act." Applying standards set out in U.S. Supreme Court precedents, the NLRB had found that the online discussion was protected because the comments made did not "mention [Triple Play]'s products or services, much less disparage them." It also found that the statements did not qualify as defamatory because the employees' stated concerns regarding their tax withholding were not "maliciously untrue." The court agreed, finding that anyone who saw the online statements "could evaluate the message critically in light of that dispute."

On October 23, the NLRB cited the case's importance as a guide to employees' online speech rights, and requested that the court give precedential authority to its decision. Triple Play disagreed, arguing that the court's decision had not created any new applicable standards for online speech and should not be published.  The Second Circuit denied the NLRB's request, stating that it will not publish the decision.

If you have any questions, please contact any member of the Carmody Torrance Sandak & Hennessey Labor and Employment Practice Group for more information.