Termination for calling boss an “asshole” or liking such comments is unlawful

Termination for calling boss an “asshole” or liking such comments is unlawful

Recently, U.S. Court of Appeals for the Second Circuit has held that termination of employees for calling an employee an asshole or liking any such comments on Facebook is clear violation of National Labor Relations Act (NLRA) and unlawful. Three D, LLC v. NLRB, Nos. 14-3284 (Lead); 14-3814 (XAP) 2015 U.S. App. LEXIS 18493

An employee at Three D, LLC, d/b/a Triple Play Sports Bar and Grille posted a derogatory status on Facebook stating “They can’t even do the tax work properly” since the employees owed more in the state income taxes than they expected due to a tax withholding error. The post initiated a series of comments and likes. Two employees, Vincent Spinella and Jillian Sanzone were terminated from their employment for calling their boss an “asshole” in those comments.

The case was first decided by the National Labor Relations Board (NLRB) where it was held that the employment termination on basis of Facebook activity was unlawful. The employer appealed to the Second Circuit which affirmed the decision given by NLRB.

Under Sections 7 and 8 of NLRA, the employees have a right to engage in any concerted activity undertaken for their collective bargaining or mutual aid and protection. This includes in its ambit discussing terms and conditions of employment such as wages, policies or employees’ treatment in the workplace. It further mentions that the employers are restricted from delving into any unfair trade practices which includes interfering with, restraining or coercing employees in their concerted activities which is their right.

Although, every company or restaurant aims to have a good reputation and will try best to prevent any defamation or disparagement that can prove bad for business; it is to be ensured that an employee’s Section 7 rights are balanced out with the employer’s interest in preventing any bad reputation or disparagement of the employer’s business or products or services and thus protect the reputation of the employer’s business.

The Second Circuit while deciding the case held that the Facebook activity was a concerted activity although it contained information related to the workplace i.e. complaints about tax liabilities that began in the workplace. It was essential to determine that context of the Facebook comments in deciding the righteousness of the termination made by the employer. The Court held that the comments weren’t as disloyal and defamatory as to lose the protection of the NLRA.

The opinion wasn’t published and setting it as a precedent; but this case serves as a reminder that the interests of the employer and the employee must be weighed and liking of comments on Facebook can be well protected under the federal labor laws. Although a comment on Facebook can be considered unprofessional, disloyal and disparaging, but its protection is determined on the basis of its substance and context.