On August 22, 2014, the National Labor Relations Board (NLRB) affirmed an administrative law judge’s January 2012 ruling that Triple Play Sports Bar and Grille (Triple Play) unlawfully fired bartender-waitress Jillian Sanzone and cook Vincent Spinella requiring they be rehired and provided back pay and benefits with interest.

In Triple Play v. Sazone and Triple Play v. Spinella, Case Nos. Cases 34–CA–012915 and 34–CA–012926, Sazone and Spinella alleged that Triple Play violated Section 8(a)(1) of the Act by discharging them in retaliation for their protected concerted activities when they took part in a comment exchange after former Triple Play worker Jamie LaFrance posted the following comment on her Facebook page:

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!!!!

Spinella clicked the “Like” button under the comment and various other employees and customers commented on the post. In response to one of the comments, LaFrance commented that one of the owners is “such a shady little man. He prolly pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there.” To which Sanzone commented, “I owe too. Such an asshole.”

The administrative law judge determined and the Board agreed that Sanzone and Spinella were engaged in protected concerted activity because this was a discussion with other workers about the calculation of their tax withholdings and that “Spinella’s selecting the ‘Like’ option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity”.

While Triple Play originally argued that the conduct was not protected concerted activity, it focused its arguments here on whether Sanzone and Spinella’s conduct was an adoption of LaFrance’s defamatory and disparaging comments such that they both lost protection of the National Labor Relations Act.

The Board recognized that employers have legitimate interests in preventing the disparagement of their products, services and reputation from defamation, however, these interests must be balanced against the interests of the employees. Because Spinella’s “Like” and Sanzone’s comment did not accuse Triple Play “of pocketing employees’ money” or otherwise “endorse[] any comment by LaFrance to that effect”, the “comments were not ‘so disloyal… as to lose the Act’s protection.”

The outcome of this decision should be another reminder for employers that the current NLRB continues to give latitude for employees to engage in disloyal and damaging conduct under the guise of protected activity.