You Can't Be Fired For 'Liking' A Colleague Calling Your Bosses 'Assholes' On Facebook

from the so-now-you-know dept

Tue, Sep 2nd 2014 1:33pm — Mike Masnick

A couple of years ago, we wrote about a rather troubling legal ruling in which a court declared that Facebook "likes" aren't a First Amendment protected expression. The ruling made little sense. It involved some employees of a local sheriff getting fired after "liking" the Facebook profile of the sheriff's opponent in the next election. Thankfully, that key part was overturned on appeal, with the 4th Circuit appeals court ruling that Facebook likes absolutely could be protected speech. Now, facing a somewhat similar issue, the National Labor Relations Board (NLRB) has similarly concluded that a Facebook like can be a form of "concerted protected activity" for which you cannot be fired.

The story involved a restaurant, Triple Play Sports, that apparently made an accounting error concerning the amount of taxes withheld in paychecks. Because of this, some of the restaurant's employees had to pay more taxes. A former employee, Jamie LaFrance, who this impacted had posted angrily to Facebook:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!

A current employee, Jillian Sanzone, added this helpful comment:

I owe too. Such an asshole.

Another current employee, Vincent Spinella, "liked" Sanzone's comment. Soon after, Sanzone and Spinella were fired. Triple Play argued that they were fired for violating the restaurant's "Internet/Blogging Policy," which is an actual thing, apparently. It's also noteworthy that a number of other Triple Play employees took part in the conversation, and were not fired. Triple Play actually argued that the fact that it kept the other employees on board showed that it wasn't targeting protected concerted action. However, the NLRB disagreed. It first found that the entire discussion was concerted activity (it helped that one of the other employees talked about raising the issue at a future meeting). Triple Play appealed and the NLRB still said it was protected activity. As Kevin Goldberg at the CommLawBlog summarizes:

Equally important here is the holding that, because Vinnie “liked” only Jamie’s original post and did not separately “like” any of the ensuing comments, his “Like” was an endorsement only of the original post and not the entire thread.

In other words, Vinnie’s “Like”, without anything more, was an expression of agreement with Jamie’s original, clearly non-defamatory, complaint. So a “Like” is clearly expression, at least in the eyes of this NLRB panel. And that interpretation can in turn be read to say that purely mechanical acts (e.g., clicking on the “Like” button) are “expression” under the NLRA. Based on that reasoning, I’d assume that, if you retweet something in a similar attempt to be part of a conversation or garner support for protected activity, you’d be protected as well.

The panel further noted that Triple Play's internet policy was itself a violation, since it effectively would ban protected concerted activity. This is not the first time that the NLRB has gotten involved in social media either. A few years back, we wrote about it issuing some warnings that it would not look kindly on firing people based on them speaking out on social networks. This ruling shows that it's living up to that promise.

Board Decision (PDF)Board Decision (Text)

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Filed Under: concerted protected activity, facebook likes, free speech, likes, liking, nlra, nlrb
Companies: triple play sports

29 Comments

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mcherm (profile), 2 Sep 2014 @ 1:35pm

Last Minute Edits:
Before releasing this:

Paragraph 6: "violating the restaurant's "Internet/Blogging" which is an actual thing" should be "violating the restaurant's "Internet/Blogging policy" which is an actual thing"

Final Paragraph: "Triple Play's internet police" should be "Triple Play's internet policy".

(Then kindly delete this comment!)
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Anonymous Coward, 2 Sep 2014 @ 1:53pm

Taxes owed due to underwithholding
Unless the withholding error was so great as to subject the affected employees to underpayment penalties, they should appreciate the reduced withholding. Owing money at tax time means you did not give the government a 0% interest loan by overpaying during the year.
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- Anonymous Coward, 2 Sep 2014 @ 2:01pm
  
  Re: Taxes owed due to underwithholding
  True, but if you suddenly owed about $5000 that you weren't expecting to have to pay would you be happy about it?
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- John Fenderson (profile), 2 Sep 2014 @ 2:12pm
  
  Re: Taxes owed due to underwithholding
  I know lots of people who intentionally underdeclare exemptions specifically so that they will have a refund every year. They use it a bit like an enforced savings plan.
  
  Yes, it's giving the government an interest-free loan, but it's an easier and more effective method of forcing yourself to save than doing it through your bank. The interest-free loan part isn't important to most people as it makes very nearly no difference in terms of how much money they get to keep.
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  - Anonymous Coward, 2 Sep 2014 @ 2:59pm
    
    Re: Re: Taxes owed due to underwithholding
    True, if they banked that money during the year, the difference between interest-free loan or Federal Reserve-inspired near-zero savings interest does not matter. On the other hand, for people who live with very near zero reserves, the reduced withholding could go toward paying off a credit card balance sooner, which could be a huge difference in their ultimate net worth.
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    - John Fenderson (profile), 2 Sep 2014 @ 3:40pm
      
      Re: Re: Re: Taxes owed due to underwithholding
      This is true, no argument. However, for people who live with no or nearly no reserves, the benefit of a yearly windfall can outweigh even that. It allows them to make larger purchases they would otherwise be unlikely to afford.
      
      In the end, this is one of those things where a person's individual situation affects whether it's the best move or not. A blanket recommendation is of limited use.
      
      I would also point out that temperament plays into this. Most people don't enjoy all the number-juggling that is required to ensure you're using your money in the most efficient way possible and so they either don't do it or do it badly (I'm in that camp, personally. It's so mightily unpleasant to me that I'm fully willing to pay more than is strictly needed in order to avoid doing it. It's a cost/benefit thing.)
      
      I would speculate further that people who do enjoy that sort of number-juggling are also people who are very unlikely to be living paycheck-to-paycheck in the first place, so your observation is of rather limited value for most, whether they're the paycheck-to -paycheck crowd or the crowd that maintains a monetary reserve.
      
      For many people who hate doing the math or lack the self-discipline needed to actually save the money (or pay the credit card), over-witholding is a legitimate and even advisable way to route around the problem.
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      - AzureSky (profile), 3 Sep 2014 @ 1:42pm
        
        Re: Re: Re: Re: Taxes owed due to underwithholding
        you must understand something John, we have alot of what many call "American Libertarians" who are sort of a mix of ancap and minarchists, they view any taxation of business/the wealthy as theft and they view any sort of social saftynets/programs paid for with tax dollars as theft.
        
        they also tend to be the ones who blame high costs 100% on regulation, and insist that without regulation and taxation businesses would do what was best for consumers thanks to "market pressure"
        
        in reality what many of these people dream of is a return to the gilded age, back before regulation (safty,environmental,ect) they dream of a day when they could exploit the poor/working class.
        
        I have even had them on more then a few occations explain to me how we could also fix education by removing child labor laws and putting kids to work for 3rd world sweatshop wages, and giving them the option to spend their earnings on an education or something else....though i dont know when the kids would have time to take classes seeing as its quite likely they would be working 16hrs shifts 7 days a week 365days a year....
        
        sorry, but my view is, yes our current govt sucks but I really dont see how removing what little we have keeping corporations under at least a little control for no control is going to fix anything.
        
        I also dont see how not taxing those with the most is in any way going to benefit society....but then again, randians/randoids (american libertarians/teatarians) dont really believe in a social contract or society, they just wana do whatever makes them happy and wealthy.....to hell with anybody else......"the virtue of selfishness" is something they believe strongly in....and the evil of altruism(both things rand wrote about...)
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Anonymous Coward, 2 Sep 2014 @ 1:53pm

Triple Play's internet police was itself a violation,
is that supposed to be "policy" ... 'cuz if they have an internet police ... that't's even more screwed up !
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AC, 2 Sep 2014 @ 1:56pm

This adds more confusion than it clears up
The First Amendment protects you from government discipline (e.g. going to prison). It does not protect you from consequences of any kind. In the first example of a public employee being disciplined over protected statements, there should be protections in place. This new case appears to be a private company.

If private corporations are now held to the same standard, does that mean I can walk into my bosses office and call him an asshole without fear of any consequences of any kind? I fail to see how that would be any different than the case in question.

If an internet/blogging policy is illegal, what about a dress policy? Clothing, especially those that have certain messages (mostly political, but anything, really) have long been found to be protected speech.

Score one for free speech, but this might open a can of worms that goes far beyond what was originally intended.
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- MDT (profile), 2 Sep 2014 @ 2:08pm
  
  Re: This adds more confusion than it clears up
  You are confusing Free Speech, with guaranteed labor rights.
  
  Completely different kettle of fish. The issue wasn't free speech. If it was just an employee posting 'These guys are assholes' and they got fired, that is not a free speech issue (and if you work in a right to work state, you're fired with no recourse).
  
  This was protected concerted activity. That's a fancy way of saying, the employees have a guaranteed right to discuss employment related issues with each other without being fired for it (basically). Especially, as the article notes, if there was talk of bringing it up to management during a regular meeting.
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  - lucidrenegade (profile), 2 Sep 2014 @ 4:10pm
    
    Re: Re: This adds more confusion than it clears up
    Since you brought the term up, what does a right to work law have to do with being fired for calling your boss an asshole? I thought right-to-work was about unions. Honest question.
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    - Anonymous Coward, 2 Sep 2014 @ 5:28pm
      
      Re: Re: Re: This adds more confusion than it clears up
      Right-to-work laws are mainly about unions, but there is a generally strong correlation between states with right-to-work laws and states that support at-will employment. At-will employment is often described by noting that the employer may fire an employee for any reason or no reason, and generally does not need to warn the employee that such a dismissal is coming. At-will employment relations typically benefit the employer more than the employee, so unions often include some provision against arbitrary dismissal as part of the union agreement with the employer.
      
      In an at-will employment state, your boss could dismiss you for insulting him, for praising him, or just because he felt like he needed to fire someone and you were the first one who caught his attention.
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      - nasch (profile), 3 Sep 2014 @ 10:03am
        
        Re: Re: Re: Re: This adds more confusion than it clears up
        At-will employment is often described by noting that the employer may fire an employee for any reason or no reason, and generally does not need to warn the employee that such a dismissal is coming
        
        And the reverse - you can quit with no notice (both assuming you don't have an employment contract).
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        AzureSky (profile), 3 Sep 2014 @ 1:44pm
        
        Re: Re: Re: Re: Re: This adds more confusion than it clears up
        expect if you do this though that you will not be able to use that job as a ref when applying for other jobs.
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        nasch (profile), 3 Sep 2014 @ 3:33pm
        
        Re: Re: Re: Re: Re: Re: This adds more confusion than it clears up
        expect if you do this though that you will not be able to use that job as a ref when applying for other jobs.
        
        Probably, but I think it's increasingly common to have as a policy to only confirm the dates of an employee's tenure and nothing more, to avoid lawsuit-happy former employees suing for defamation. So that will be a less and less important concern I think. Also I hope that if there isn't already, there will be ways to find out if a company habitually terminates employees without warning, so employees can avoid such employers.
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        John Fenderson (profile), 4 Sep 2014 @ 9:55am
        
        Re: Re: Re: Re: Re: Re: Re: This adds more confusion than it clears up
        "I think it's increasingly common to have as a policy to only confirm the dates of an employee's tenure and nothing more"
        
        They usually include one further piece of information: whether the employee in question is eligible for rehire. Former employers won't say why an employee isn't eligible for rehire, but potential employers will take a "no" as a huge red flag that there's something wrong with that applicant.
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    - Mikael (profile), 2 Sep 2014 @ 5:33pm
      
      Re: Re: Re: This adds more confusion than it clears up
      As far as I know that is correct.
      
      It looks like MDT may have confused "right to work" with "at-will employment". Right to Work is, as you said, about union affiliation. Right to Work laws are pretty much for making sure you cannot be either denied employment or fired from your job based on union membership or non-membership.
      
      At-will employment means that if you are an at-will employee your boss can fire you for whatever they want so long as it is not violation of their state's public policy doctrine or a state or federal statute. There are some good examples posted here. http://www.toplawfirm.com/employmentlawFAQs.html
      
      The "National Labor Relations Act" would be the federal statute this "protected concerted activity" would fall under.
      
      RIGHTS OF EMPLOYEES
      
      Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
      Even if you are an at-will employee you cannot be fired for something considered a protected activity. Well...they COULD fire you, but you'll have legal recourse if they do.
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      - Arthur Moore (profile), 2 Sep 2014 @ 10:43pm
        
        Re: Re: Re: Re: This adds more confusion than it clears up
        The problem isn't the legality of the actions. It's actually bringing a lawsuit. It's generally accepted and internalized in some industries and placed that talking about Unionizing is the fastest way to get fired. The big thing is the corporation won't do it immediately, and suing is more of a gamble than Vegas.
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    - art guerrilla (profile), 3 Sep 2014 @ 6:53am
      
      Re: Re: Re: This adds more confusion than it clears up
      'right to work' is doublespeak, what it REALLY means is, right to fire your ass without any reason whatsoever...
      
      technically, it means you can't be discriminated against for NOT joining a union, but with unions to the point of nothingness (in a number of ways), it has no meaning...
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      - Anonymous Coward, 3 Sep 2014 @ 7:03am
        
        Re: Re: Re: Re: This adds more confusion than it clears up
        'right to work' is doublespeak, what it REALLY means is, right to fire your ass without any reason whatsoever...
        Wrong, and disappointingly so considering that two better informed comments preceded yours by several hours. Please read above where other posters explained right-to-work, at-will employment, and the nuances of both.
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Anonymous Coward, 2 Sep 2014 @ 5:33pm

Another business to avoid.

Why are these accounting challenged idiots snooping employee facebook postings anyways? Rather creepy shit there. Seems their time would be better spend in accounting class.
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- nasch (profile), 3 Sep 2014 @ 10:05am
  
  Re:
  Why are these accounting challenged idiots snooping employee facebook postings anyways?
  
  I don't think we should be so quick to judge someone for a tax error. The tax code is notoriously complicated and I'm sure it's easy to screw up for a small business doing it themselves.
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MAX, 2 Sep 2014 @ 8:09pm

I think people now should avoid using Fecebook, then there will be no problem at all.
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- Anonymous Coward, 3 Sep 2014 @ 4:43am
  
  Re:
  This will fix the problem ... oh yeah.
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Anonymous Coward, 3 Sep 2014 @ 6:30am

as it applies to opie and anthony?
So - I wonder how this would apply to Anthony Cumia re: his firing from Sirius/XM (Opie & Anthony show).... seeing how folks "can't be fired" from spouting off on social media... since he said the same things on radio and got paid for it, yet gets fired for tweeting... confusing indeed...
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- Michael, 3 Sep 2014 @ 6:59am
  
  Re: as it applies to opie and anthony?
  Keep in mind that we are talking about the "liking" of the comment:
  
  Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!
  
  not all of the comments by other people. This comment is not defamatory or attacking and is actually legitimately discussing work-related issues. Anthony actually made comments that could possibly have been actionable (many consider them racist) and was NOT discussing employment or work-related issues as was happening in the case above.
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  - Anonymous Coward, 3 Sep 2014 @ 7:35am
    
    Re: Re: as it applies to opie and anthony?
    what I was referring to was the NLRB's assessment as to "speaking out" on social media was not a "firable offense" - however, "speaking out" can take almost any* form - not just those that are socially questionable - and seeing as how Sirius/XM had up until then PAID him to make those statements, it seems akin to getting fired from your IT job for setting up a WiFi in your house. I guess the questions come down to 1.) what - if any - force does the NLRB actually have in these situations (may vary state to state ?), and 2.) If the NLRB is correct, why isn't Anthony's tweet protected as well? (goes back to "concerted"?)
    
    /Threadjack over.
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    - nasch (profile), 3 Sep 2014 @ 10:07am
      
      Re: Re: Re: as it applies to opie and anthony?
      2.) If the NLRB is correct, why isn't Anthony's tweet protected as well? (goes back to "concerted"?)
      
      Did he get fired for discussing employment-related matters with coworkers? Because if not, then that situation is unrelated to this one with the restaurant.
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Ninja (profile), 3 Sep 2014 @ 7:58am

Hmmm, to be honest they could simply fire them stating their services are no longer needed and there would be very little to be discussed. If I own a business I can fire an employee if I decide I don't like him/her even if said employee is doing everything professionally and efficiently so there is that.

A DECENT management would acknowledge the err and offer to compensate the employee (and probably change its accounting management).
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