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Appeals Court Hits "Like" Button on NLRB Facebook Post Ruling: Calling Boss An A--hole on Facebook is Protected

Appeals Court Hits "Like" Button on NLRB Facebook Post Ruling: Calling Boss An A--hole on Facebook is Protected

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by   Samuel Morris               Godwin Morris Laurenzi Bloomfield

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2nd Circuit likes NLRB ruling on workers' Facebook posts

 

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(Reuters) - A Connecticut sports bar violated federal labor law by firing a waitress who called her boss an "asshole" on Facebook and a cook who simply "liked" the post, a U.S. appeals court said Wednesday in upholding a National Labor Relations Board ruling.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals in a summary order that did not create new precedent rejected claims by Triple Play Sports Bar & Grille that disparaging an employer on social media is no different than doing it in front of customers.

The court affirmed a 2014 NLRB decision ordering Triple Play to hire back the two workers and give them back pay.

"The Board's decision that the Facebook activity at issue here did not lose the protection of the (National Labor Relations) Act simply because it contained obscenities viewed by customers accords with the reality of modern day social media use," the court said.

The NLRB, in several cases since 2011, has upheld employees' rights to criticize employers on social media as long as their statements are not knowingly false, but the Triple Play case was the first to be reviewed by a U.S. appeals court.

The case has highlighted tensions over balancing workers' free speech rights with the ability of employers to enforce loyalty and conduct policies in the era of social media. And while Triple Play's case did not involve union organizing, some observers say it signaled that the NLRB would thwart efforts by employers to stifle Internet-based labor campaigns.

Three D LLC, which owns Triple Play, in 2011 fired waitress Jillian Sanzone for her comments on a former coworker's Facebook post complaining about owing income taxes. Vincent Spinella, a cook, was fired for simply "liking" the post.

The Facebook exchange was private, but two Triple Play customers who were friends with the workers also commented on the post.

The NLRB in a 2-1 decision said Sanzone's comment and Spinella's "like" were concerted protected activity under the NLRA because they were designed to improve working conditions.

But Three D and its attorneys at Connecticut law firm Yamin & Grant countered before the 2nd Circuit that employers have the right to refuse to tolerate employees' disloyalty and obscenities in the presence of customers, whether they occur in the workplace or online.

Appeals courts have for decades held that employees can be fired for using profanity in front of customers or denigrating their employer without raising a specific grievance, but until Wednesday none had weighed in on whether that extends to social media posts.

The company said Spinella promoted the post by liking it, in violation of a company loyalty policy. But the NLRB and the 2nd Circuit on Wednesday said the policy barring "inappropriate discussions" about work on the Internet was too broad.

The Service Employees International Union in an amicus brief on behalf of the board said Facebook has become a "virtual water cooler" where workers can organize and share their experiences, but a ruling in favor of Triple Play would discourage its use.

The 2nd Circuit on Wednesday appeared to agree, saying that virtually any social media post by an employee has the potential to be viewed by customers.

The panel did not say why it issued a summary order; court rules call for such orders "when ... each panel judge believes that no jurisprudential purpose is served by an opinion."

The panel included Circuit Judges Chester Straub, Barrington Parker and Richard Wesley.

An NLRB spokeswoman declined to comment. So did Triple Play's attorney, Melissa Scozzafava.

The case is Three D LLC v. NLRB, 2nd U.S. Circuit Court of Appeals, Nos. 14-3284 and 14-3814.

 

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50 N. Front St., Memphis TN  38103

901 528 1702    901 949 1144

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