Monday, October 26, 2015

2nd Circuit Says It’s Okay to Swear About Your Supervisor, Just Not At Him

Last year we reported on the NLRB case of Triple Play Sports Bar and Grille which fired two employees for their Facebook activity. As readers may recall, a former employee of Triple Play posted a comment on Facebook which was derogatory to the company, including a remark that she owed more in state income tax than the company withheld.  One employee “liked” the comment and another employee posted the following response. "I owe too. Such an a**hole."  

The NLRB found that the discharge violated the employee’s  Section 7 rights to engage in protected, concerted activity.  The employer appealed, making the argument that the situation was analogous to that of  NLRB v. Starbucks Corp., 679 F.3d 70, 193 LRRM 2161 (2d Cir. 2012) where Starbucks fired an employee after he engaged in an angry obscenity-laced confrontation with a supervisor inside a store, within earshot of customers. In the Starbucks case, the NLRB found that the employee was not protected in his outburst, in part because it was in front of customers.  Triple Play argued that customers could view the Facebook comments as they were not private messages. 

The 2nd Circuit distinguished the circumstances in Triple Pay to those in the Starbucks case finding that the NLRB based its decision in the latter case on the longstanding recognition "that an employer has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation . . . from defamation." In refusing to extend that recognition to Facebook activity, the 2nd Circuit noted that the Triple Play employee discussion was not directed toward customers and did not reflect the employer's brand. The court held that the Board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers, accords with the reality of modern day social media use.