What Can Employers Learn from the “Triple Play” Facebook Termination Case?

This article by Todd Leeson was published in the Winter/Spring 2015 edition of “Virginia Human Resources Today” magazine, a publication of the Virginia Society for Human Resource Management.

In Three D, LLC, 361 NLRB No. 31 (Aug. 22, 2014), the NLRB held that an employer unlawfully terminated two employees who had posted content on Facebook that the employer considered to be disloyal or defamatory. What can Virginia employers learn from this case?

Triple Play is a restaurant owned in part by Ralph DelBuono. In January 2011, employees learned that they owed more in state taxes than expected. In response to their complaints, Triple Play scheduled an employee meeting with its payroll provider.

Before the meeting occurred, Jamie, a former employee, posted to her Facebook page information critical of the owners of Triple Play, noting that they could not even do taxes correctly. Several of Jamie’s Facebook “friends” commented and expressed their outrage. Jamie replied further stating, among other things, that it was “all Ralph’s fault.” At that point, Vincent, a current employee, selected the “like” option in his Facebook response. There were a number of additional Facebook comments. Another current employee, Jillian, then chimed in as follows: “I owe too. Such an a–hole.” [Referring to Ralph.]

The Board analyzed this case under the following test: “employee communications to third parties in an effort to obtain their support are protected where the communication indicated it is related to an ongoing dispute between the employees and the employers and a communication is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” The Board found that Jillian’s profanity toward her boss–posted on an individual’s Facebook page–was no big deal. The Board also interpreted Vincent’s “like” as referring only to Jamie’s initial comment. The Board opined that Vincent had the option to individually “like” each of the prior comments but did not so do. The Board, therefore, concluded that the employees’ comments were not so disloyal as to lose the protection of the Act and that they were not defamatory or maliciously untrue.

Unfortunately, this decision is not surprising. This Board has shown time and time again its willingness to protect conduct by employees that most employers would consider unacceptable. As just one example, in Plaza Auto Center, a May 2014 case, an employee raised his voice during a meeting with the owner of a small business and called him, among other things, a “f—ing crook” and an “a–hole” who is stupid and that nobody liked. The employee then stood up and stated that if he was fired, the owner would “regret it.” The owner fired him. Remarkably, the Board concluded that the employee’s conduct was protected because it was “not menacing, physically aggressive or belligerent.”

What does this mean? At a minimum, if an employee is arguably engaged in PCA, it will be more difficult for the employer to terminate the employee even if it reasonably believes that the conduct by the employee was egregious. In other words, the employer may need to be more tolerant of employee dissent. As you probably know, the NLRB is also regularly invalidating various social media and other policies because they are deemed to be ambiguous and/or overbroad (i.e., infringing upon an employee’s right to engage in PCA). Thus, there is heightened legal risk for an employer to rely upon a social media or other handbook policy as a basis for disciplinary action unless you are confident that your policy will withstand NLRB scrutiny. In sum, as employers evaluate employee misconduct on social media, HR professionals must be mindful of the NLRB’s strong interest in the topic.