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Termination for Facebook Activity Violated the NLRA

Termination for Facebook Activity Violated the NLRA

In Three D, LLC v. NLRB, the federal Second Circuit Court of Appeals affirmed the National Labor Relations Board’s (“NLRB”) finding that an employer violated the National Labor Relations Act (“NLRA”) by terminating its employees for their Facebook activity and by maintaining an overbroad Internet Policy.

The NLRB is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions. The Board is charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices.

The employer, Three D, LLC, d/b/a Triple Play Sports Bar and Grille (“Triple Play”) appealed a decision of the NLRB finding that Triple Play violated Section 8(a)(1) of the NLRA.

Section 7 of the Act guarantees that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of … mutual aid or protection ….” Section 8(a)(1) of the Act protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7] ….” 29 U.S.C. § 158(a)(1).

As noted by the Court, “an employee’s Section 7 rights must be balanced against an employer’s interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business.” As such, an employee’s communications with the public may lose the protection of the Act if they are “sufficiently disloyal or defamatory. These communications may be sufficiently disloyal to lose the protection of the Act if they amount to criticisms disconnected from any ongoing labor dispute.”

Under federal law, an employee’s public statement is defamatory “if made maliciously, meaning with knowledge of its falsity, or with reckless disregard of whether it was true or false.” “The mere fact that statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue. Where an employee relays in good faith what he or she has been told by another employee, reasonably believing the report to be true, the fact that the report may have been inaccurate does not remove the relayed remark from the protection of the Act.”

The only “employee conduct” at issue was one employee’s “like” of another’s initial status update (“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!!!!”); and another employee’s comment stating “I owe too. Such an asshole.” Regarding this conduct, the NLRB had concluded that, “in the context of the ongoing dialogue among employees about tax withholding,” the employees had at maximum endorsed one employee’s claim that Triple Play had erred in her tax withholding.

The Board concluded that the Facebook activity in this case was “concerted” because it involved four current employees and was “part of an ongoing sequence of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding.” The Board also found that the Facebook activity was “protected” because “the discussion concerned workplace complaints about tax liabilities, [Triple Play’s] tax withholding calculations, and LaFrance’s assertion that she was owed back wages.”

After finding that the Facebook activity constituted protected concerted activity, the only remaining question before the Board was whether that Facebook activity was so disloyal or defamatory as to lose the protection of the Act. It concluded that it was not, because “[t]he comments at issue did not even mention [Triple Play]’s products or services, much less disparage them.” The Board further concluded that Triple Play failed to meet its burden to establish that the comments at issue were defamatory because “there is no basis for finding that the employees’ claims that their withholding was insufficient to cover their tax liability, or that this shortfall was due to an error on [Triple Play]’s part, were maliciously untrue.”

Triple Play argued on appeal that because the employee’s Facebook activity contained obscenities that were viewed by customers, the NLRB should have found that this activity lost the protection of the Act. The Second Circuit disagreed, stating that this “could lead to the undesirable result of chilling virtually all employee speech online. Almost all Facebook posts by employees have at least some potential to be viewed by customers. Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand. The Board’s decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers, accords with the reality of modern-day social media use.”

No Testimony From Stevie The Dog

No Testimony From Stevie The Dog

In Gellenbeck v. Whitton, the Court had directed a hearing in a prior decision to determine to which party it would award ownership of a beloved, female, mixed-breed dog named “Stevie.” It had concluded that in determining this issue, the Court would “apply the standard of ‘what is best for all concerned,’” and that each party would “have the burden of proving why Stevie [would] have ‘a better chance of living, prospering, loving and being loved’ in the care of one partner as opposed to the other.”

On a motion to “renew,” one party argued that the Court should be applying a “property rights analysis” rather than the “best for all concerned” standard. On further reflection, the Court changed its mind, after recognizing the “difficulty in determining what is best for animals who, after all, cannot exactly tell us what they want.”

“But what if they could? Or what if we could determine that on our own? Are courts obligated to take into account what is best for animals? That would seem to depend upon whether animals have rights, specifically, the right to have courts take into account what is best for them.”

“Everyone agrees that humans have rights, although the source (and scope) of those rights is a matter of contention. Some would say that governments confer rights; but, to date, governments have not conferred rights on animals (although they have imposed some prohibitions on what humans can do to them). Some would say that “personal feeling” and “justice” confer rights; but such rights would be too subjective and amorphous to enforce. *** “The ‘best interests’ of the pet is not a valid line of inquiry … nor is the equally amorphous standard of the best interest of all.” Evolutionary psychologists would say that membership in the same gene pool confers rights; but much as humans love Stevie, they cannot procreate with her. Some, including this Court, would say that a Rousseauian “Social Contract” confers rights; but, alas, only human beings are deemed to have contract rights enforceable at law. Some would say that “policy” confers rights; but policy is for the legislature, law is for the courts. One could posit that historical antecedents confer rights; but historically, Anglo Saxon law has conferred rights on people, not pets. *** “The law presently categorizes entities in a simple, binary, ‘all or nothing’ fashion”: humans have rights; non-humans do not.”

“Finally, some would argue that a “Supreme Being” confers rights. After all, the Declaration of Independence states, “We hold these truths to be self-evident, that all [people] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Alas, the drafters equated people with each other, not with animals, and made no mention of the latter being endowed with any rights. If a “Supreme Being” has bestowed rights on animals, they need to be enforced elsewhere than in “Supreme Court.”

“Conferring rights on animals would create the ultimate slippery slope. Some start-of-life and end-of-life issues aside, we can all agree on what constitutes a human being, and that they all have rights. But if dogs were deemed to have rights, why not cats, raccoons, squirrels, fish, ants, cockroaches? Could you be imprisoned for swatting a fly? Where will it all end? Will we need a new set of McKinney’s Consolidated Laws of New York for each species? Or do we just declare that all animals, or maybe just our favorite ones, have the right to contract; to sue and be sued; to own property; to marry; to vote? In Act III, Scene 1 of the Merchant of Venice, Shakespeare’s Shylock asks, “If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?” Admittedly: some animals have very human characteristics. Thus, we love them, treat them as family, anthropomorphize them. But in the grand sweep of human history, we have not opened up the floodgates to granting them rights. In the final analysis, it is unwildy and unworkable, and would open up all manner of mischief. (Lest the various vociferous animal rights activists think that this Court is a heartless automaton, the record should reflect the Court’s prior ownership of Humphrey the basset hound and Wabber the tabby cat, which were beloved beyond all reason.)”

“Thus, Stevie, for all the joy she brings to this world, does not have the right to have a court of law predicate a decision, in whole or even in part, on what is best for her. Accordingly, this Court simply erred in declaring that a “best for all concerned” standard would and should be applied to the hearing that still needs to be held in this case. The correct law is the law of property, and this Court will determine and award possession of Stevie according to that law, and no other.”

Unemployed Teacher Volunteering As Nanny Entitled to Unemployment Benefits

Unemployed Teacher Volunteering As Nanny Entitled to Unemployment Benefits

In Matter of Connerton, a laid off elementary school teacher appealed from a decision of the Unemployment Insurance Appeal Board, which ruled that she was ineligible to receive unemployment insurance benefits because she was not “totally unemployed.”

According to the decision of the Appellate Court, the elementary school teacher cared for a coworker’s young daughter at various times between September 2011 and June 2012 during a period when she was laid off from her teaching job. She did so while she was at home caring for her own young son and the coworker did not pay her for her services.

During the time she provided the childcare, she received unemployment insurance benefits. Following what the Court characterized as “extended proceedings addressing her eligibility to receive such benefits,” the Unemployment Insurance Appeal Board ultimately ruled that she was ineligible.

The on appeal, Court held that “resolution of this case turns on whether claimant’s activities in caring for her coworker’s child without compensation while she was laid off constitute a lack of total unemployment rendering her ineligible to receive unemployment insurance benefits. Labor Law §591 (1) limits eligibility for benefits to those claimants who are “totally unemployed,” which has been defined as “the total lack of any employment on any day.” In this context, the term employment contemplates that a claimant will potentially receive some type of monetary payment or future benefit in exchange for services rendered.”

“Here, it is undisputed that claimant did not receive any compensation for caring for her coworker’s son and there is no evidence in the record that she was likely to obtain a future financial benefit for doing so. Consequently, we must conclude that the Board’s finding that claimant’s activities in this regard amounted to a lack of total unemployment is not supported by substantial evidence. Accordingly, its decision must be reversed.”

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