Be Careful When Disciplining Employees for Social Media Use

November 16th, 2015 • by Joe Carello
Joe Carello

Joe Carello

    Joe Carello is an attorney whose practice is focused on representing and counseling employers in all aspects of labor and employment law, including wage-and-hour class action litigation, discrimination, sexual harassment, wrongful discharge and ERISA litigation and other compliance matters.

    Employee use of social media can be a tricky area for employers. As we all know, social media profiles can be a mix of personal and work-related content. But employers who discipline or terminate employees based on statements made on social media run the risk of violating the law. Section 7 of the National Labor Relations Act provides employees with the right to organize and engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” An employer violates Section 8(a)(1) of the Act by interfering, restraining or coercing employees in the exercise of their Section 7 rights, which can include conversations via social media such as Facebook, Twitter or blogs. Yet, the NLRB has recognized that online employee communications can implicate legitimate employer interests, such as the right to protect its business concerns and orderly operations. There are often unclear lines of demarcation between these competing rights.

    Jillian Sanzone (“Sanzone”) and Vincent Spinella (“Spinella”) were employed at the Connecticut based Triple Play Sports Bar. In early 2011, upon filing her tax return, Sanzone discovered that she owed income taxes to the state of Connecticut apparently due to her employer’s withholding practices. Another restaurant employee informed Sanzone that she also owed taxes. Concerns spread among the employees about their employer’s withholding calculations and the owners arranged for staff to meet with the restaurant’s accountant and payroll company.

    Sanzone and Spinella never made it to the scheduled meeting as their social media activity sealed the fate of their employment beforehand. A former restaurant employee posted the following status update 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]!!!!” Several of the former employee’s Facebook friends, including restaurant employees and customers, joined in. As the dialogue ensued on the Facebook page, Spinella clicked the “Like” button under the former employee’s initial status update and Sanzone posted a single comment stating “I owe too. Such an asshole.” (referring to one of her bosses). When the restaurant owners learned of this social media activity, they promptly fired Sanzone and Spinella, construing their participation in the Facebook discussion to constitute disloyalty.

    Sanzone and Spinella contended that they were wrongfully terminated in violation of the Act. An administrative law judge agreed and ruled that the employer responded unlawfully to the employees’ protected concerted activity. The restaurant appealed to the NLRB, which heard the matter through a three-member panel and determined that the employees’ online activities were indeed protected by Section 7 of the Act. The Second Circuit agreed with the NLRB that “Spinella’s and Sanzone’s communications, which were made to seek and provide mutual support looking toward group action, were not made to disparage Triple Play or to undermine its reputation.”

    The decision in Triple Play Sports Bar offers employers a cautionary lesson when considering whether to discipline employees who engage in questionable conduct on social media.