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In an unfortunate but important decision, the Second Circuit Court of Appeals upheld the National Labor Relations Board’s (NLRB) finding that employee complaints of their employer and use of the “like” feature on Facebook were protected by Section 7 of the National Labor Relations Act (NLRA).

The facts of the matter before the NLRB and court of appeals are indicative of how readily employers can get into trouble with the confluence of the new age of social media and the NLRB’s determination to police employers’ actions in response to social media. Here, a former employee, one Mr. LaFrance, posted the following on his Facebook account regarding his former employer – “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!!!!” Ms. Sanzone, a former colleague to Mr. LaFrance who was still employed by Triple Play (the company) articulated in prosaic fashion – “I owe too. Such an asshole.” Viewing the posts, Mr. Spinella, a cook for Triple Play and colleague of Ms. Sanzone’s “liked” both posts. Not amused, both Spinella and Sanzone were fired by the company for their actions on Facebook.

The NLRB found Sanzone’s and Spinella’s actions protected by Section 7 of the NLRA and the company’s termination of their employment a violation of Section 8. Last week a federal court of appeals upheld the NLRB’s decision. It is a cautionary tale to employers for two reasons. First, the use of “like” can be viewed as concerted activity that protects employees from reprisal by their employers for engaging in such activity. And second, the court was not deterred by the vulgar and public nature of Sanzone’s use of the word “asshole” on Facebook. Profanities from employees witnessed by a company’s clients/customers have historically not been protected by the NLRA and could be cause for termination of an employee. Here, however, the court notably found that even though the Facebook post could be viewed by potential customers of Triple Play, the potential communication of obscenities differed from actual communication. That is to say that if Sanzone had yelled “asshole” at the manager in front of customers at the bar itself it might not be protected by the NLRA, whereas posting the same on a former employee’s Facebook page was protected (once Spinella joined to make it concerted).  

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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