Last year, the National Labor Relations Board (NLRB) found that an employer violated federal labor law by terminating two employees for their responses to an ex-employee’s Facebook post criticizing the bar’s tax withholding practices. The Board also found that the employer unlawfully enforced an overly broad Internet/Blogging policy that could be read by employees to prohibit them from engaging in legally protected activity.
The Board’s 2014 ruling in Triple Play Sports Bar and Grille v. NLRB was recently upheld by the U.S. Court of Appeals for the Second Circuit. The appeals court agreed with the NLRB that Facebook postings which Triple Play found offensive were made for the purposes of mutual aid or protection and not to disparage the bar. The court also endorsed the NLRB’s finding that Triple Play’s Internet/Blogging Policy was overly broad.
Given the NLRB’s interest in recent years in the issue of whether the use of social media by employees that is found to be objectionable by their employers constitutes legally protected concerted activity under federal labor law, more cases such as this one are likely to end up in the courts.
A copy of the Second Circuit’s decision in Triple Play Sports Bar and Grille is available here.