Over the last several years, the National Labor Relations Board (“NLRB”) has issued several decisions overturning employer discipline for employee conduct on social media.  In a recent decision by the Second Circuit Court of Appeals, the federal court upheld the NLRB’s decision and ordered reinstatement for employees who posted a profane comment and approved an offensive post about their employer.  This appeals court decision contains some important warnings for employers who are considering discipline for employees’ negative social media conduct.

The employee conduct at issue in the Triple Play Sports Bar and Grille (“Triple Play”) case concerned participation in a post by a former employee on the social media site called Facebook.  A former employee published a post claiming that the owners of Triple Play could not properly complete employee withholding tax calculations.  As a result, the former employee claimed she owed money to the Internal Revenue Service (“IRS”).  One current employee clicked the “Like” button on this post.  Another current employee wrote a comment to the post, claiming she also owed money to the IRS and used a profane word to describe the management of Triple Play.  The Facebook post was seen by at least two Triple Play customers.

Triple Play’s employee handbook included an “internet/blogging” policy that provided:

The Company supports the free exchange of information and supports camaraderie among its employees.  However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.  Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company.  In the event state or federal law precludes this policy, then it is of no force or effect.

Triple Play management terminated the two employees when they discovered the Facebook Post.  Triple Play argued the social media conduct violated the “internet/blogging” policy.

The NLRB found the terminations were unlawful.  It found that the employees’ Facebook conduct was protected under the National Labor Relations Act (“NLRA”).  The comment and “Like” related to a post discussing Triple Play’s tax withholding was “protected, concerted” activity related to the employees’ “terms and conditions of employment.”

After examining the “internet/blogging” policy, the NLRB found the policy was invalid because it was too “vague.”  Employees could reasonably read the policy to prohibit discussions related to their terms and conditions of employment like the discussion concerning tax withholding at issue in this case.  The NLRB ordered reinstatement for both employees.  The employees were also ordered to be compensated for approximately four years of backpay.

The Second Circuit Court of Appeals agreed with the NLRB.  The Second Circuit refused to hold the employees responsible for their Facebook conduct.  It reasoned that even though the employees’ conduct was offensive and profane, it was still protected because it did not rise to the level of being “sufficiently disloyal or defamatory.”  In order to be considered “defamatory,” the statements would need to be made “maliciously, meaning with knowledge of its falsity, or with reckless disregard of whether it was true or false.”  The employees’ conduct did not rise to such a high level.  Therefore, the employees were protected under the NLRA.

The Second Circuit rejected Triple Play’s argument that the Facebook conduct was not protected because it was seen by customers.  The court rejected this argument because the conduct was “not directed towards customers and did not reflect the employer’s brand.”

The decisions from the NLRB and the Second Circuit include several important takeaways for employers:

  • Employers should review their internet, blogging, or social media policy to determine if it is vague or overbroad.  The NLRB has issued recent guidance that employers should review to determine if their policies are compliant with current NLRB law.
  • The NLRB and the court may not uphold discipline decisions simply because an inappropriate social media post or comment was seen by customers on the internet.  The NLRB and the courts will look to the surrounding circumstances to determine if discipline was warranted.
  • An Employer does not need to tolerate all offensive and profane social media conduct.  An employee can be disciplined for social media postings that are “sufficiently disloyal or defamatory.”

If you have any questions concerning this case, or would like to have someone take a second look at your social media policy, feel free to contact Erik Laiho at the telephone number and email address listed below.

Erik M. Laiho is a Washington licensed attorney representing Management in the areas of labor and employment law.  For more information contact Erik at, or (206) 447-0182.

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