In a recent case decided by the National Labor Relations Board (NLRB), it was determined that an employer cannot fire an employee for disloyal comments made on social media.
Facts of the case
Triple Play Sports Bar and Grille (Triple Play) fired its bartender/waitress, Jillian Sanzone, and cook, Vincent Spinella. The employees filed a lawsuit alleging that Triple Play’s termination of them violated Section 8(a)(1) of the National Labor Relations Act. Sanzone and Spinella claimed that Triple Play fired them in retaliation for their protected activities on Facebook.
A former Triple Play employee, Jamie LaFrance, posted the following comment on Facebook:
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!!!!
Spinella clicked the “Like” button under the comment. Several others made responses to the comment, including Sanzone’s post that said: “I owe too. Such an asshole.”
The administrative law judge held that the employees were having a discussion with other workers about the calculation of their tax withholdings that constituted protected concerted activity. When Spinella clicked the “like” button, she was participating in the discussion.
Triple Play argued that the employees’ conduct was not protected concerted activity, focusing on whether their actions were an adoption of LaFrance’s disparaging and defamatory comments, causing them to lose the protection of the Act.
Although the Board recognized that employers have a legitimate interest in preventing the disparagement of their reputation, it must be balanced against the interests of Spinella and Sanzone. The Board, upholding the administrative law judge’s decision, held that the “comments were not ‘so disloyal… as to lose the Act’s protection.”
If you have questions regarding this decision or any other employment law matter, contact the employment attorneys at The Swenson Law Firm.