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NLRB's "Triple Play" Test for Social Media - When Employee Posts Lose the Act's Protection

September 2, 2014

By Jennifer A. Sabovik

On August 22, 2014, in Triple Play Sports Bar and Grille, a three member panel of the National Labor Relations Board (NLRB) held that employees who “like” a comment on a fellow employee’s Facebook page may be engaged in protected, concerted activity under the National Labor Relations Act (Act). The decision, which applies to both union and nonunion employers, is not a surprising one. The NLRB had already held that the Act protects employees’ Facebook discussions regarding their terms and conditions of employment. Thus, the Triple Play conclusion that the Act’s protections also include employees who “like” those discussions is a fairly natural development of the NLRB’s still evolving social media law. Despite this, Triple Play is a decision that even employers can “like” because it provides clear guidance as to when an employee’s social media statements will fall outside of the Act’s protections.

The case finds its origin at the Triple Play Sports Bar and Grille in Watertown, Connecticut. Triple Play, which was a nonunion employer, fired two employees because of their participation in a Facebook discussion related to the workplace. The employees then successfully challenged the terminations, alleging Triple Play had violated the Act.

The NLRB agreed with the Administrative Law Judge that Triple Play’s terminations violated the Act. Both of the terminated employees had participated in a Facebook discussion started by Jamie LaFrance, a former employee who had posted a “status update” blaming her State income tax situation on the owners of Triple Play. She stated:

“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!!!!”

This post generated a series of colorful “comments” from some of her Facebook “friends” (see page 2 of the opinion). The commenters included customers and current Triple Play employees, such as bartender/waitress Jillian Sanzone and cook Vincent Spinella. Responding to comments blaming one of the owners for the tax situation, Ms. Sanzone stated: “I owe too. Such an asshole.” Mr. Spinella did not actually write a comment; instead, he “liked” the discussion. A Facebook friend of Ms. LaFrance told the Triple Play owners of the discussion; after a very short investigation Triple Play fired Ms. Sanzone and Mr. Spinella.

On review, Triple Play did not dispute the ALJ’s finding that the Act protects the Facebook activities of Ms. Sanzone and Mr. Spinella. The judge had found the discussion to be “concerted activity because it involved four current employees” who were involved in “’an ongoing sequence’ of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding.”

Instead, Triple Play took exception to the ALJ’s finding that the employees did not lose the Act’s protection under the four-factor balancing test of Atlantic Steel Co., 245 NLRB 814 (1979). The NLRB adopted the ALJ’s finding, but did not rely upon the judge’s application of Atlantic Steel. The NLRB said Atlantic Steel is suited to face-to-face workplace confrontations between employees and managers, but “is not well suited to address issues that arise in cases like this one involving employees’ off-duty, offsite use of social media to communicate with other employees or with third parties.” In such cases, the NLRB said it will apply the standards of two other pre-social media decisions - NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966). 

As applied by the NLRB in Triple Play, I have summarized those standards into a new two-prong test, which I am calling the “Triple Play Test.” (Feel free to “like” that.) Under the two-prong Triple Play Test, employees’ social media statements and “likes” may lose the protection of the Act if:

(1) they amount to DISLOYAL DISPARGEMENT because they (a) are aimed at the general public, (b) are not related to and/or do not disclose the existence of an ongoing labor dispute, (c) disparage the company’s products and/or services, or undermine its reputation;

and

(2) they are DEFAMATORY because they are maliciously untrue (i.e., they are made with knowledge of their falsity, or with reckless disregard for their truth or falsity).

Future developments in the NLRB’s social media cases may include decisions addressing [A] whether the NLRB will apply the Triple Play Test or Atlantic Steel to social media discussions involving direct online confrontations between supervisors and employees, and [B] whether an employer engages in “unlawful surveillance” under the Act by viewing or monitoring employees’ social media activities.

Bullard Law will continue to monitor these cases and other NLRB developments. Please feel free to contact us anytime with questions about these matters or any other labor, employment, or benefits issues of interest or concern to you.

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