Three D, LLC v. National Labor Relations Board
629 F. App’x 33 (2015)
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Rule of Law:
An employee's online social media activity concerning terms and conditions of employment is protected concerted activity under the NLRA and does not lose that protection merely due to the use of obscenities or its potential visibility to customers, unless the communication is so disloyal or defamatory as to be unprotected. An employer's internet policy also violates the NLRA if employees would reasonably construe its language as prohibiting such protected activity.
Facts:
- A former employee of Triple Play Sports Bar and Grille, Jillian LaFrance, posted a public Facebook status complaining that she owed money on her taxes because Triple Play could not 'even do the tax paperwork correctly!!!'
- Current employee Vincent Spinella 'liked' LaFrance's post.
- Current employee Jamie Sanzone commented on the post, 'I owe too. Such an asshole.'
- The Facebook discussion was part of an ongoing sequence of conversations that had begun in the workplace among employees about their tax withholdings.
- The Facebook discussion was visible to the public, including some of Triple Play's customers.
- Upon discovering the Facebook thread, Triple Play management discharged Spinella and Sanzone for their participation.
- At the time, Triple Play maintained an Internet/Blogging policy which prohibited employees from engaging in 'inappropriate discussions'.
Procedural Posture:
- The NLRB's General Counsel issued a complaint against Three D, LLC ('Triple Play') alleging violations of the NLRA.
- An Administrative Law Judge (ALJ) conducted a hearing and found that Triple Play unlawfully discharged the employees but that its internet policy was not unlawful.
- Both parties filed exceptions to the ALJ's decision with the National Labor Relations Board (NLRB).
- The NLRB affirmed the ALJ's conclusion that the discharges were unlawful and reversed the ALJ regarding the internet policy, finding it was also unlawful because it was overbroad.
- Triple Play, as petitioner, appealed the NLRB's Decision and Order to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does an employer violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging employees for engaging in a Facebook discussion about a tax withholding dispute and by maintaining an internet policy that employees could reasonably construe as prohibiting such protected activity?
Opinions:
Majority - Per Curiam
Yes. An employer violates Section 8(a)(1) of the NLRA by discharging employees for protected concerted activity on social media and by maintaining an overbroad internet policy. The court found that the employees' Facebook activity was 'concerted' because it was part of an ongoing group discussion about workplace conditions, and it was 'protected' because it concerned tax withholdings, which relate to terms of employment. The activity did not lose its protection because it was neither disloyal under the Jefferson Standard test, as it did not disparage the employer's products or services, nor was it defamatory under the Linn test, as the employer failed to prove the statements were maliciously untrue. The court distinguished this case from others involving obscenities in front of customers, reasoning that applying such a standard to social media would chill virtually all online employee speech. The court also found the company's internet policy unlawful under the Lutheran Heritage framework because employees would reasonably construe the prohibition on 'inappropriate' discussions as forbidding protected conversations about their employment conditions.
Analysis:
This decision solidifies the application of traditional NLRA principles to modern social media, affirming that activities like 'liking' or commenting on a Facebook post can constitute protected concerted activity. The ruling establishes a high bar for employers seeking to discipline employees for online speech, requiring proof of specific disloyalty (disparaging products) or malicious defamation, rather than just the presence of profanity or exposure to customers. This precedent significantly impacts how employers must draft social media policies, pushing them away from vague, overbroad rules that could 'chill' employees from exercising their Section 7 rights to discuss working conditions online. It signals that courts will protect online labor discussions as an extension of the physical workplace.
