## Facts

- Three D, LLC operated Triple Play Sports Bar and Grille, a non-union workplace in Connecticut.
- A former employee posted on Facebook that the employer’s tax paperwork errors caused her to owe state income taxes.
- Current employees participated in the thread: Vincent Spinella clicked “Like,” and Jillian Sanzone commented that she also owed taxes and insulted the owners.
- Other employees and at least two customers could view and participated in the discussion.
- After learning of the thread, the owners discharged Sanzone for alleged disloyalty and discharged Spinella on the theory that his “Like” supported disparaging and defamatory statements; the employer also raised defamation threats.
- The employer maintained an “Internet/Blogging Policy” warning that employees engaging in “inappropriate discussions about the company, management, and/or co-workers” online could be disciplined or discharged.
- An ALJ found the employer violated NLRA § 8(a)(1) by interrogating employees about the Facebook discussion, discharging Sanzone and Spinella for that activity, and maintaining an overbroad policy that could chill § 7 activity.
- The NLRB affirmed, finding the Facebook activity was protected concerted activity and the policy unlawfully overbroad.
- The employer petitioned for review, and the NLRB cross-applied for enforcement in the Second Circuit.

## Issues

1. Whether an employee’s Facebook “Like” and another employee’s critical comment about the employer’s payroll tax practices constituted protected concerted activity under NLRA § 7.
2. Whether the Facebook activity lost NLRA protection because it was disloyal, defamatory, or involved profanity and potential customer visibility.
3. Whether the employer’s Internet/Blogging policy violated NLRA § 8(a)(1) because employees could reasonably read it to restrict protected concerted activity.

## Decision

- The Second Circuit denied the employer’s petition for review and granted enforcement of the NLRB’s order.
- The court upheld the Board’s finding that the Facebook thread concerned workplace tax-withholding and wage-related complaints and was part of ongoing employee discussions, making the activity concerted and for mutual aid or protection.
- The court agreed that Spinella’s “Like” constituted participation in the protected discussion by signaling support for coworkers’ workplace-related concerns.
- The court held the activity did not lose protection as disloyal or defamatory because it remained connected to a genuine workplace dispute and was not shown to be maliciously false or made with reckless disregard for truth.
- The court upheld the finding that the Internet/Blogging policy’s ban on “inappropriate discussions” was unlawfully broad because employees would reasonably interpret it to prohibit protected complaints about terms and conditions of employment.

## Legal Principles

- Employee communications about wages, payroll practices, and related financial liabilities may qualify as concerted activity when they are part of or arise from group workplace discussions.
- Online conduct, including a social-media “Like,” can constitute participation in concerted activity when it communicates support for coworkers’ protected complaints.
- Protected activity may lose NLRA protection if statements are maliciously false, defamatory (known falsehood or reckless disregard), or so disloyal and disconnected from a workplace dispute that they become unprotected.
- Employer work rules violate § 8(a)(1) if employees would reasonably construe them to prohibit or chill the exercise of § 7 rights, even if the rules do not expressly mention union activity.
- Broad prohibitions on “inappropriate” online discussions about the company or management are unlawful where they are ambiguous and reasonably read to bar protected discussion of working conditions.

## Conclusion

The Second Circuit enforced the NLRB’s determination that employees’ Facebook participation about payroll-tax errors was protected concerted activity and that the employer unlawfully interfered with § 7 rights by disciplining employees for that activity and maintaining an overbroad social-media rule that could chill workplace-related discussion.


Three D, LLC v. NLRB, 629 F. App’x 33 (2d Cir. 2015)