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November 09, 2015 Practice Points

Facebook Comments May Constitute "Protected Concerted Activity" under NLRA

The Second Circuit affirms the NLRB’s ruling in Triple Play.

John Stock

The Second Circuit Court of Appeals recently affirmed a National Labor Relations Board (NLRB) ruling that employees’ critical comments about their employer on Facebook may constitute “protected concerted activity” under the National Labor Relations Act (NLRA).Three D, LLC d/b/a Triple Play Sports Bar and Grille, 2nd Cir. Nos. 14-3284, 14-3814 (Oct. 21, 2015). Employee public comments concerning labor disputes are protected activity under the NLRA. However, such comments can lose their protection if they are “sufficiently disloyal” or defamatory.

The employees in Triple Play were engaged in an informal dispute with their employer concerning alleged errors by the employer in calculating withholding taxes. One employee posted a Facebook “like” of another employee’s Facebook status update: “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!!!!” Another employee posted the comment: “I owe too. Such an asshole.” Triple Play terminated two of the employees based on these comments.

The terminated employees brought unfair-labor-practice charges against Triple Play. The NLRB held that the terminations violated the NLRA as the employees’ comments were protected concerted activity.

The Second Circuit affirmed the NLRB, holding that the employees’ Facebook comments were protected concerted activity under the NLRA: (1) the comments were “concerted activity” because they were exchanged (albeit via a public medium) among current Triple Play employees; and (2) the comments were “protected” because they related to the employees’ tax withholding dispute with their employer.

But the required analysis does not end with a determination that there is “protected concerted activity.” An employee’s protected NLRA section 7 rights must be balanced against an employer’s interest in preventing disparagement of its products and services and protecting the reputation of its business. For these reasons, an employee’s otherwise protected public comments may lose their protection if they are sufficiently disloyal or defamatory.

An employee’s public comments are sufficiently disloyal to lose their NLRA protection if they amount to criticism of the employer that is disconnected from any ongoing labor dispute. The Facebook comments at issue in Triple Play were directly connected to the parties’ tax withholding dispute.

Moreover, the employees’ Facebook comments were not defamatory. They did not even mention Triple Play’s products or services.

Finally, an employee’s otherwise protected comments can lose their protected status if the employee uses obscenities in the presence of the employer’s customers. Nonetheless, the Second Circuit concluded that using obscenities on Facebook was not equivalent to an employee using obscenities in the physical presence of customers. To apply the obscenity rule to Facebook discussions would have an impermissible chilling effect on virtually all employee online speech.

— John Stock, Benesch Friedlander Coplan & Aronoff LLP, Columbus, OH

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