Tuesday, November 17, 2015

The NLRB's Triple Play Decision -- the Employer is "Out!"

By Brian Farrington

Things got tense between employees and the owners of the Triple Play bar and restaurant when some of the servers discovered that the employer had not made proper state income tax deductions. As a result, the servers had additional tax liability—and they didn’t like it. There was a discussion at work among the servers, and with the management, and the company said it would meet with its accountants later to discuss the problem.

Since this is the 21st century, the employees had to vent on Facebook. A former employee, Jamie, posted: “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!!!!” In response, employee Danielle posted: “I F***ING OWE MONEY TOO!" Jamie said: “It's all Ralph's fault. He didn't do the paperwork right. I'm calling the labor board to look into it bc he still owes me about 2000 in paychecks.”
At this point, employee Vincent hit “Like.” Employee Jillian joined the conversation, and said: “I owe too. Such an asshole."

As always happens, one of the people friended by Danielle was also close to management. In fact, she was the owner’s sister, and she promptly told the owner about the exchange. Danielle and Jillian were fired for “disloyalty,” and Vincent was also fired because he “Liked” the exchange. Jamie, the former employee, was threatened with a defamation suit.

Jamie did in fact “call the labor board.” She complained to the National Labor Relations Board, and the Board made the following analysis. Section 7 of the National Labor Relations Act provides employees with the right to organize and to bargain collectively, and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” Such “concerted activities” are protected, and employees can’t be fired for engaging in them.

The Board found that the Facebook discussions were  protected concerted activity because the discussion concerned workplace complaints about tax liabilities, the Respondent's tax withholding calculations, and Jamie's assertion that she was owed back wages. Vincent’s selection of the "Like" button expressed his support for the others who were sharing their concerns and "constituted participation in the discussion that was sufficiently meaningful as to rise to the level of" protected, concerted activity.

The employer conceded that the activities were on their face protected, but argued that the “obscene, defamatory, and derogatory” nature of the comments caused them to lose protection. The Board disagreed. It concluded that the comments were not disloyal, since they were private and did not disparage the employer’s products or services, and were not defamatory. The employees were reinstated, with back pay. Triple Play Sports Bar & Grille, 2014 NLRB LEXIS 656, 200 L.R.R.M. 1569, 2014-15 NLRB Dec. (CCH) P15,855, 361 NLRB No. 31, 200 L.R.R.M. 1569, 2014-15 NLRB Dec. (CCH) P15,855, 361 NLRB No. 31 (N.L.R.B. Aug. 22, 2014).

Interestingly, the Board also invalidated the company’s internet policy. It found that portion of the policy which forbade “’inappropriate discussions about the company, management, and/or coworkers’ on social media” was too broad, and might “chill” legitimate discussions about working conditions. On October 21, 2015, the Second Circuit upheld the Board’s decision. Three D, LLC v. NLRB, 2015 U.S. App. LEXIS 18493 (2d Cir. Oct. 21, 2015).

Takeaways? Take a good look at your internet policies, and don’t make them too broad or too vague. Further, just because an employee’s speech about the company or its management gets a little, shall we say, colorful, doesn’t automatically justify their termination. And finally, remember when an employee pushes “Like,” with nothing more, it may turn a Facebook comment about work from another employee into protected, concerted activity by both.

Return to list.