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Online Work Complaints Ruled to be Protected Speech

May 28th, 2015 Christopher Davis

In late 2014, a three-member panel of the National Labor Relations Board (NLRB) concluded that Triple Play Sports Bar and Grille had violated the National Labor Relations Act (NLRA) when it fired two employees over comments made on Facebook disparaging the restaurant’s owner, deeming the event an instance of wrongful termination.

The case began in January 2011 when waitress Jillian Sanzone discovered that she, along with several other coworkers, mistakenly owed state taxes on her wages. Shortly after the incident, a former Triple Play employee posted a complaint on Facebook about the tax miscalculation, targeting the restaurant’s owners, Ralph DelBuono and Thomas Daddona. Ms. Sanzone commented “I owe too” on the post, and referred to Mr. DelBuono with the term “asshole.” Another employee, Vincent Spinella, “liked” the original post, but not Ms. Sanzone’s comment, nor any other comments. The following day, Ms. Sanzone and Mr. Spinella were fired in retaliation, with their employers citing the Facebook exchange as cause for termination. The restaurant also threatened to sue all three individuals for defamation.

Ms. Sanzone filed a charge to the NLRB regarding her termination, and the Board found that the employees’ online discussion was protected “concerted activity” that involved improving their employment conditions. Section 7 of the National Labor Relations Act protects the right of employees seeking “mutual aid or protection.” Although the exchange took place on social media, the employees voiced legitimate concerns about workplace conditions, specifically the miscalculation of taxes. Mr. Spinella’s Facebook “like” was also protected, as it was considered a demonstration of support for voicing workplace concerns. Section 8 of the NLRA outlaws employers’ attempts to stifle concerted activity or retaliate against individuals who act in good faith.

It is important to note that the Act does not protect any employee who disparages or defames an employer through false or malicious statements that cause damage to the employer. But defamation must be factual; the “asshole” comment was protected as rhetorical hyperbole.

The NLRB required Triple Play to offer reinstatement to Ms. Sanzone and Mr. Spinella, and compensate them both for lost earnings and any adverse tax consequences that may have arisen as a result of their wrongful termination. The Board also issued an order mandating that Triple Play revise its social media policy, which it deemed to contain language prone to “imprecise interpretation,” potentially in a manner contrary to activities protected by the National Labor Relations Act. If any employer has a social media policy that would hinder an employee’s exercise of concerted activity rights, it is a violation of the NLRA, even if the policy itself is not violated and no wrongful termination occurs.

As the Triple Play case demonstrates, employees can safely make incendiary Facebook comments about their employer, as long as they are expressing legitimate workplace concerns. The right to speak out about workplace problems merits NLRA protection, and individuals will be insulated from employer retaliation.