In an unpublished order last week, a panel of the Second Circuit affirmed a decision by the National Labor Relations Board (NLRB) finding that an employer violated the National Labor Relations Act (NLRA) when it discharged two employees for responding, one with a comment and one with a "Like," to a former employee's negative Facebook post about the employer's tax withholding practices. One of the current employees referred to the employer as an "asshole" and the other posted a Facebook "Like." See Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, Nos. 1403284; 14-3814(XAP), (2d Cir. Oct. 21, 2015) (unpublished).
Finding that the non-unionized employees were engaging in concerted activity, the panel rejected the employer's argument that the postings were not protected due to the use of profanity, and noted that such a holding, in light of the nature of social media, "could lead to the undesirable result of chilling virtually all employee speech online." Important to the Court was the fact that the comments at issue did not mention the employer's products or services, much less disparage them.
The order is currently designated as "unpublished," meaning that it has no precedential effect. The NLRB has asked the Court to designate the order for publication, which would give it precedential authority. A decision on publication will be forthcoming.
The currently-unpublished order serves as a warning to employers to exercise caution before making employment decisions related to social media postings.