The National Labor Relations Board ruled that “liking” a Facebook post criticizing an employer’s business practices constituted protected concerted activity for one restaurant employee, making his resulting termination unlawful. The Board also found violations in a number of the company’s other actions, including interrogating employees about the Facebook posts, threatening legal action and maintaining an overly broad Internet policy. The case is Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014).
The Case
Former Triple Play Sports Bar & Grille employee Jamie LaFrance posted the following “status update” on her Facebook page: “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!!!!” A number of other employees, as well as restaurant customers, joined the conversation by commenting. Employee Vincent Spinella “liked” LaFrance’s original post, but did not comment. LaFrance blamed Ralph DelBuono, co-owner and accountant for the restaurant, for the alleged tax mistake. To this, Jillian Sanzone, a waitress and bartender at Triple Play, commented, “I owe too. Such an asshole.”
When Sanzone reported to work two days later, Thomas Daddona, co-owner, informed her she was being discharged because she was not loyal enough to work at the restaurant based on her Facebook comment. Spinella reported to work a day later and was summoned to the back office where the co-owners waited with the comments from LaFrance’s Facebook page displayed on a computer screen. They asked Spinella if he “has a problem with them, or the company,” before interrogating him about the Facebook posts, the meaning behind “liking” the post, the identities of the others involved in the conversation and whether he had written anything negative about the owners. DelBuono told Spinella that since he “liked the disparaging and defamatory comments,” it was “apparent” that he did not want to work there. After discharging Spinella, DelBuono said, “You’ll be hearing from our lawyers.” Council never contacted Spinella, and no legal action was taken against him.
Findings and Rulings
Administrative Law Judge Lauren Esposito had found that Triple Play violated Section 8(a)(1) of the National Labor Relations Act by discharging Spinella and Sanzone for participating in protected concerted activity for the purpose of mutual aid or protection. The Board affirmed, citing that the Facebook comments were part of an ongoing discussion, they were issues the employees planned to raise in a staff meeting, and the comments discussed ways to lodge complaints with government entities. Judge Esposito said Spinella’s “liking” the post, “constituted participation in the discussion that was sufficiently meaningful as to rise to the level of” protected, concerted activity.
Finally, Triple Play violated the Act by maintaining an overly broad “Internet/Blogging” policy, which could have been reasonably interpreted to prohibit Section 7 rights. Since the policy provided no examples of “inappropriate” behavior, the word was “sufficiently imprecise” to cause this violation.
Remedies
Triple Play must revise or rescind the Internet/Blogging policy and provide employees with inserts containing a lawful policy or announcement that the unlawful policy has been rescinded. Sanzone and Spinella must be offered full reinstatement within 14 days of the date of the order and Triple Play must remove any reference in its files to the employees’ discharge. The restaurant also must make them whole for any loss of earnings or benefits and compensate Sanzone and Spinella for any adverse tax consequences from receiving lump-sum back pay awards. Lastly, the restaurant must post a notice of the NLRB ruling in its facility for 60 consecutive days in conspicuous places.