Triple Play’s argument that Starbucks should apply

A controversy that began in 2011 reached final resolution recently when a federal court ruled that employer Triple Play Sports Bar acted unlawfully when it fired two employees due to vulgarity and disloyalty to the employer in their Facebook posts.

The Facebook discussion began when employees were informed they would owe more in state taxes than had been withheld from their paychecks. Former Triple Play employee Jamie LaFrance posted the following status update on her Facebook page, which started a discussion:

LaFrance: 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!!!!

Ken De Santis (a Facebook “friend” of LaFrance’s and a customer): “You owe them money…that’s f**d up.”

Danielle Marie Parent (Triple Play employee): “I f**cking owe money too!”

At this point, employee Vincent Spinella chimed in by “liking” LaFrance’s initial status update.

The discussion continued through several more postings from employees and customers. One comment came from employee Jillian Sanzone and was about a company manager:

Sanzone: “I owe too. Such an a**hole.”

The employer believed that Spinella and Sanzone had shown themselves to be disloyal to the company—Spinella merely by “liking” the allegedly defamatory comment from LaFrance and Sanzone by using vulgarity to comment on a fellow worker. Sanzone and Spinella were fired for disloyalty.

Challenging that action, the two employees filed a complaint with the National Labor Relations Board. The Board found the employees were engaged in concerted activity, a work‐related discussion that was protected by the National Labor Relations Act, and that firing them was, therefore, unlawful.

On appeal, the employer conceded there was concerted and protected activity. It contended, however, that due to the vulgar and defamatory nature of the employees’ comments and the fact that they were made publicly, the protection should be removed. It analogized the employees’ behavior on Facebook to having a shouting match with a supervisor in the presence of customers. It claimed that the Board’s ruling had failed to take into account this aspect of the case.

It based this appeal on a previous NLRB case involving Starbucks where the Board had considered the public nature (inside a store where customers could overhear) of a heated argument in which vulgarities were used between a Starbucks manager and an employee who was a vocal union supporter.

Triple Play argued that the Starbucks case suggested that “most or all” employees using obscenities in the presence of customers would lose their NLRA protection.

The court was not persuaded: “Accepting Triple Play’s argument that Starbucks should apply because the Facebook discussion took place ‘in the presence of customers’ could lead to the undesirable result of chilling virtually all employee speech online.

Observing that almost all Facebook posts by employees have at least some potential to be viewed by customers, the court affirmed the Board decision that the discharges were illegal Three D, LLC v. NLRB, No. 14��3284 (2d. Cir. Summary Order Oct. 21, 2015).

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