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Reversal of Facebook firings casts new light on social media policies

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A federal appeals court order that upholds a National Labor Relations Board ruling provides a warning to employers against vaguely worded social media policies — and is likely to be a bellwether of future litigation in this area.

The 2nd U.S. Circuit Court of Appeals in New York last month upheld an NLRB ruling that a sports bar violated the National Labor Relations Act when it fired two employees who had criticized the bar's management in Facebook entries, in Three D L.L.C. d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board.

According to the NLRB's brief filed with the 2nd Circuit in the case, in January 2011, a former employee of the Watertown, Connecticut, sports bar complained on Facebook that she had discovered she owed back taxes and complained “they can't even do the tax paperwork correctly.”

One current employee, Vincent Spinella, selected the “like” option under the posting, and another, Jillian Sanzone, referring to one of the owners, responded, “I owe too. Such an a--hole”

On Feb. 2, 2011, Ms. Sanzone was discharged with the explanation “she was not loyal enough to be working for Triple Play because of her Facebook comment.” The next day, after first being questioned about who else participated in the conversation, Mr. Spinella was discharged as well, according to the brief.

In August 2014, in largely upholding an administrative judge's ruling, the NLRB ruled that Ms. Sanzone's and Mr. Spinella's Facebook communications were protected activity under the National Labor Relations Act.

The board also ruled that the Internet/blogging policy in Triple Play's handbook, which asserted the bar's right to terminate employees for “inappropriate discussions,” violated the act because it could reasonably be interpreted to prohibit employees from engaging in protected communications.

A three-judge panel of the 2nd Circuit unanimously affirmed the board's ruling on Oct. 22. Quoting the NLRB's brief, the appeals court said it agreed with the board's ruling that Ms. Sanzone's and Mr. Spinella's communications “which were made to seek and provide mutual support looking toward group action, were not made to disparage Triple Play or undermine its reputation.” It also agreed with the board's ruling on the blogging policy.

The case is a reminder that to survive scrutiny by the NRLB or a circuit court, employers' social media policies “need to be more specific” and “can't rely on subjective standards it's entirely within the employer's discretion to interpret,” said Philip L. Gordon, a shareholder at law firm Littler Mendelson P.C. in Denver.

It is a continuation of NLRB cases that “have extended the protection for concerted activity to online communications,” said Maria Greco Danaher, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Pittsburgh.

Employers “must make steps to, number one, make sure that they're training their supervisors and managers on these issues, and, number two, make sure their social media polices are clear and consistent with these protections that are being extended by the NLRB and the courts,” Ms. Danaher said.

Employers will have to find the fine line between discussions among employees that is protected activity, where they are discussing the terms of their employment, and “rants,” where workers may not be protected, said Loren Lee Forrest Jr., senior counsel with Holland & Knight L.L.P. in New York.

Jennifer A. Dunn, a partner with Franczek Radelet P.C. in Chicago, said the decision is significant because it was decided by the 2nd Circuit. “We haven't seen too many federal court opinions addressing this as of yet,” she said.

More litigation in this area can be expected, though, say observers.

“We've entered that stage where employees will continue to be disciplined and terminated because of their social media posts and will dispute the propriety of their terminations,” Mr. Gordon said. “It's going to take a while before the etiquette, the social norms around social media and their intersection with work get established.”

Email went through a similar process over a 20- to 25-year period, Mr. Gordon said. “We have reached a point there is a certain kind of etiquette around email, but we're not there yet with social media.”