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Workers Who Criticize Their Employers on Social Media Can't Be Fired

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The Second Circuit released a long-awaited decision that held Facebook status updates and likes – even when used by workers to disparage employers – constitute protected activity. Now, workers who comment and like critical posts about their employers cannot be terminated or otherwise punished for these protected actions.

Protected Activity on Facebook

The protected activity involved? A bartender for Triple Play Sports Bar and Grille commented on an ex-employee’s Facebook status update, and a fellow coworker clicked “like.” Jillian Sanzone and Vincent Spinella – the two Watertown employees – had recently discovered they owed more in state income taxes than they originally expected. This issue was discussed with fellow co-workers, and complaints were made to the employer.

The discussion continued on Facebook when former employee Jamie LaFrance posted the following status update to her Facebook page:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do their tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”

LaFrance followed up with a post about the accounting error, blaming the state taxes owed on the owner of Triple Play, “Ralph.” LaFrance’s next status update read:

“It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it because he still owes me about $2,000.00 in paychecks.”

Employees began clicking the “Like” option under LaFrance’s status updates and a discussed in the post’s comments section. Sanzone commented, calling her employer an “asshole.” LaFrance chimed in, referring to Ralph the owner as a “shady little man” who probably “pocketed it all from our paychecks.”

When Triple Play found out about the Facebook criticism, it terminated Sanzone for her own comment and Spinella for liking LaFrance’s disparaging words. The Second Circuit panel disagreed with Triple Play in an unprecedented decision, holding the workers’ actions amounted to a group of employees discussing labor issues under the NLRA (National Labor Relations Act). The appellate panel further found this type of discussion was not meant to defame the bar or its products.

Protected Concerted Activity

The appellate court’s decision affirms the 2012 NLRB v. Starbucks Corp. ruling based on worker obscenities overheard by customers within earshot in the world-renowned coffee shop. The Second Circuit pointed out the difference in the two case environments. The circuit court found it unreasonable to use the same standard applied to a Facebook post that customers could potentially see.

The appellate panel had no intention of creating the undesirable result of chilling virtually all employee speech online.

[sws_pullquote_right] See Also: Obscene Threats on Facebook About your Employer Will Get You Fired [/sws_pullquote_right]

“The board’s decision that the Facebook activity at issue here did not lose the protection of the act, simply because it contained obscenities viewed by customers, accords with the reality of modern‐day social media use,” the Second Circuit held. “Almost all Facebook posts by employees have at least some potential to be viewed by customers.”

Before this decision, employees had the right to improve the terms and conditions of their workplace — so-called “Section 7″ rights to protected concerted activity under the National Labor Relations Act – even if workers are not unionized.  Now this right to protected concerted activity applies to all types of social media . . . it even applies to Facebook “likes”.

The case is Three D, LLC v. NLRB.

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