The United States Court of Appeals for the Second Circuit issued a summary order affirming a 2014 National Labor Relations Board decision finding that an employer violated the National Labor Relations Act by terminating employees for several Facebook postings.  The postings included an employee "liking" a coworker's statement that "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!!!!" and a responding comment stating "I owe too.  Such an a?hole."

 

Section 7 of the National Labor Relations Act gives employees the right to self-organize, form, join or assist unions and to engage in other concerted activities for the purpose of mutual aid or protection.  Section 8(a)(1) of the Act prohibits employers from interfering with, retraining or coercing employees in the exercise of their Section 7 rights.  In limited circumstances, where an employer takes an adverse action after an employee makes a maliciously false statement against it, such action may not be considered to violate Section 8(a)(1).

 

In this case, the Second Circuit affirmed the National Labor Relations Board's conclusion that the employees' Facebook discussion regarding employer errors in tax withholdings was protected and concerted activity.  The discussion involved four current employees and concerned work complaints about tax liabilities.  The termination of an employee who liked a comment made by another employee ("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!!!!"), and a second employee who affirmed that comment ("I owe too.  Such an a?hole") were merely endorsements of the posting employee's claim that the employer had erred in her tax withholding.  These Facebook postings were not comprised of statements that were maliciously untrue, and the fact that they contained obscenities that were viewed by customers did not result in the loss of protection under the Act.  As such, the Second Circuit concluded, the Board properly concluded that the employee discharges violated the NLRA.  Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB