October 29, 2015

Second Circuit Says Facebook Profanity Directed at Employer is Protected

Employer Violated NLRA by Terminating Two Employees for "Liking" and Commenting on Disparaging Posts
Holland & Knight Alert
Loren Lee Forrest Jr.


  • The U.S. Court of Appeals for the Second Circuit affirmed the National Labor Relations Board's finding that two employees were unlawfully terminated despite using profanity and “liking” profanity-laced Facebook posts directed at their employer.
  • "Liking" and commenting on a co-worker's or former co-worker's disparaging and profanity-laced tirade about their employer can be protected concerted activity.  
  • Employees may be able to use profanity about their employers when discussing the terms and conditions of their employment on Facebook and other social media websites.

In Three D, LLC d/b/a/ Triple Play Sports Bar and Grille v. NLRB, the U.S. Court of Appeals for the Second Circuit upheld the National Labor Relations Board's (the Board) determination that the employer, Triple Play, unlawfully terminated two employees in 2011. One employee was terminated for using profanity in calling her employer an "a**hole," and the other employee was discharged for liking a former employee's rant that Triple Play had incorrectly calculated her tax withholdings, which ended with the acronym "wtf," representing a widely known phrase that includes profanity.

Jamie LaFrance, a former Triple Play employee, posted on Facebook 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!!!!" Vincent Spinella, a current employee of Triple Play, "liked" Ms. LaFrance's post. Jillian Sanzone, another current employee of Triple Play, commented, "I owe too. Such an a**hole."

The Board found that the Facebook comment of Sanzone and the "like" of Spinella were "protected concerted activity," about the terms and conditions of their employment, specifically, their employer's tax-withholding policies. Therefore, Triple Play actions in terminating Sanzone or Spinella were in violation of the National Labor Relations Act (NLRA or the Act).  

The Board declined to hold either Sanzone or Spinella responsible for any of the other profanity-laced statements posted in the Facebook discussion on grounds that "neither Sanzone nor Spinella would have lost the protection of the Act merely by participating in an otherwise protected discussion in which other persons made unprotected statements."

Notably, the Board found that the Atlantic Steel test, by which determines whether an employee's workplace conduct loses the NLRA's protection for otherwise protected activity, is not well-suited to cases involving employees' off-duty, off-site use of social media. Rather, the Board assessed the employees' comments under Jefferson Standard and Linn and concluded that the statements were neither disloyal nor defamatory under those standards and therefore did not lose the Act's protection.

The Board concluded that since Sanzone's and Spinella's Facebook activity constituted protected concerted activity, the only remaining question was whether the Facebook activity was so disloyal or defamatory as to lose the protection of the Act. The Board found that Sanzone's and Spinella's Facebook activity was not so disloyal as to lose protection of the Act because "[t]he comments at issue did not even mention Triple Play's products or services, much less disparage them." The Board also concluded that Sanzone's and Spinella's comments were not defamatory because they were not "maliciously untrue."

Second Circuit Decision

On appeal to the Second Circuit, Triple Play argued that "liking" such defamatory comments by a former employee could not be reasonably interpreted as attempting to improve the terms and conditions of the employees' employment. Triple Play also argued that because Sanzone's and Spinella's Facebook activity contained obscenities that were viewed by customers, their actions were not protected by the NLRA.

The Second Circuit found that Triple Play's arguments (that the employees' comments on Facebook were not protected) were not comparable to a recent Second Circuit decision that upheld a termination in which the employee used profanity, disparaging his employer in the presence of customers.

Although Triple Play argued the comment by Sanzone was knowingly false, the Second Circuit agreed with the Board that the communication was protected concerted activity, "not made to disparage Triple Play or to undermine its reputation." Curiously, the Second Circuit agreed with the Board's reasoning that "simply because Sanzone knew that Triple Play did not make an error on her (own) tax withholdings does not mean that Sanzone's endorsement of LaFrance's complaint about Triple Play making tax-withholding errors was deliberately or maliciously false."

Adding insult to injury, in addition to finding the employees' terminations unlawful (resulting in reinstatement and back pay for Sanzone and Spinella), the Second Circuit agreed with the Board's conclusions that Triple Play's Internet/Blogging Policy violated the NLRA as well. Specifically, the Second Circuit agreed with the Board that Triples Play's employees would reasonably interpret the company's policy as proscribing any discussions about the terms and conditions of their employment "deemed inappropriate" by their employer.   

Action Items for Employers

Employers should remember that vulgar, profanity-laced and even untrue social media posts by current employees may be protected in certain circumstances. Employers should seek the assistance of counsel when effecting discipline for employees' social media activity. Lastly, all employers should review their Internet and/or social media policies in the context of the Triple Play decision.

For additional information regarding similar Board rulings, see Holland & Knight’s alert, "Recent NLRB Decisions Condone Workplace Profanity and Insubordination" (Sept. 15, 2014).

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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