- Facebook "Likes" Are Protected Speech Under NLRA
- November 10, 2015
- Law Firm: Shawe Rosenthal LLP - Baltimore Office
- Employees’ Facebook activity, including “likes” of others’ postings, may constitute concerted activity that is subject to protection under the National Labor Relations Act, according to the U.S. Court of Appeals for the 2nd Circuit.
Facts of the Case: In Three D, LLC dba Triple Play Sports Bar and Grille v. NLRB, an employee “liked” another employee’s Facebook posting that stated, “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!!!!” Another employee then commented, “I owe too. Such an asshole”, referring to one of the owners. The two employees were fired for their Facebook activity (the “like” and the comment), and the National Labor Relations Board found their terminations to be unlawful. (Of note, the NLRB declined to hold the employees responsible for statements posted by others in the discussion).
The Court’s Ruling: The 2nd Circuit agreed with the NLRB that the Facebook activity was “made to seek and provide mutual support looking toward group action” regarding an ongoing dispute about tax withholdings, and was thereby protected by the NLRA. The 2nd Circuit rejected the employer’s argument that the “like” and comment were so disloyal or malicious as to lose the protection of the NLRA. It also rejected the argument that, because the activity contained obscenities that could be viewed by customers, it should have lost the protection of the NLRA. The 2nd Circuit noted that, while obscenities in the workplace in the presence of customers are typically unprotected under current law, expanding this holding to Facebook activity “could lead to the undesirable result of chilling virtually all employee speech online.”
Lessons Learned: Employers must be careful in disciplining employees for their social media activity. While individual gripes are not protected by the NLRA, discussions with other employees about the terms and conditions of employment, even when couched in offensive terms, will typically be considered protected concerted activity. Moreover, the employee is responsible for only his or her own comments and “likes” - thus “liking” a single comment does not mean that the employee is “liking” the entire discussion.