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When Can an Employer Terminate an Employee for Facebook Activity?

It has been said that social media is the modern version of the workplace water cooler – the place where employees go to vent, rant, and share experiences. The National Labor Relations Act was passed decades before the Internet. Courts and administrative agencies, including the National Labor Relations Board, have struggled to apply a statute that was enacted dozens of years before the world heard of Steve Jobs.

Recently, the United States Court of Appeals for the Second Circuit, in Three D, LLC v. NLRB, considered the issue of when an employer can terminate an employee for Facebook activity. At its core, the case involved a posting by an employee that stated: “Maybe someone should do the owners of Triple Play [the employer] a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I owe money. . . WTF!!!!” A different employee “liked” the post. A third employee commented “I owe too. Such an asshole.”

The NLRB found that the communications constituted concerted activity under the NLRA because it involved several current employees and was part of an ongoing sequence of discussions that began in the workplace about the company’s calculation of an employee’s tax withholding. The board also concluded that the Facebook activity was protected because the discussions concerned workplace complaints about tax liabilities, the company’s tax withholding calculations, and an employee’s assertion that she was owed back wages. Accordingly, the board held that the employer, Triple Play Sports Bar and Grille, illegally fired employees for their Facebook activity.

The Second Circuit’s Rationale

The Second Circuit analyzed the issue as a balancing test. Specifically, it reasoned that an employee’s rights under the NLRA to engage in protected and concerted activity must be balanced against an employer’s interest in preventing disparagement of its products or services and protecting its reputation. In practice, this means an employee’s communications with the public may lose the protection of the NLRA if they are sufficiently disloyal or defamatory - often meaning the criticisms are disconnected from any ongoing labor dispute. A public statement is considered defamatory if it was made with knowledge of its falsity or with reckless disregard for whether it was false or true.

The Second Circuit agreed with the NLRB’s determination and reasoning that the activity of the employees was concerted and protected. The Second Circuit also agreed with the board that the Facebook activity was not so disloyal as to lose protection under the Act because the comments at issue did not mention the company’s products or services or disparage it. The Second Circuit held that the employees’ comments did not lose protection since they were not maliciously untrue.

Interestingly, the Second Circuit also rejected the employer’s argument that protection should be lost because the Facebook activity contained profanity uttered “in the presence of customers.” According to the Second Circuit, accepting the employer’s argument that the comments should lose protection because they were made in the presence of customers could lead to the “undesirable result of chilling virtually all employee speech online.” The court went a step further: “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.”

Conclusion

The Second Circuit’s decision in Triple Play is a powerful reminder to employers that they need to be very careful about terminating employees for their Facebook activity. Comments made by one or more employees on social media that are unflattering, critical, caustic, or even embarrassing to employers do not necessarily justify terminating employees. To be sure, this is a fluid area of the law as courts and the NLRB continue to grapple with the challenge of applying dated legal principles to modern forms of communication. Employers should consult with experienced counsel before deciding whether to terminate an employee for social media posts.

Marc Engel is an employment attorney and litigator at Lerch, Early & Brewer who advises managers of all types on employment issues, and provides strategies for preventing, defending, and resolving wage and hour claims. For more information about issues surrounding employee facebook and other social media posts, contact Marc at (301) 657-0184 or mrengel@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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