On October 21, 2015, in Triple Play v. National Labor Relations Board, the Second Circuit affirmed a 2014 National Labor Relations Board ruling that Triple Play Sports Bar violated the National Labor Relations Act when it discharged two employees for liking and commenting on a critical Facebook status.
The case involved two employees of the Triple Play Sports bar, Vincent Spinella and Jillian Sanzone who had been fired for their online conduct. A third employee had published a post on Facebook stating: “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 acted first when he “liked” that post. Next, Sanzone commented “I owe too. Such an asshole.” These actions were among the later responses in a chain of comments involving the former employee, other current employees, and Facebook friends – at least one of whom was a customer of the sports bar.
Section 7 of the National Labor Relations Act guarantees employees the right “to engage in other concerted activity for the purpose of… mutual aid or protection.” An administrative law judge with the NLRB determined that liking and commenting on the original employee’s Facebook post met the definition of concerted activity. That protection, however, is lost if the activity is sufficiently disloyal. The Supreme Court, in Labor Board v. Electrical Workers (Jefferson Standard), held that activity was sufficiently disloyal when it was disconnected from any ongoing labor dispute. That test was used by the NLRB to conclude that Spinalla and Sanzone’s activity was protected.