In a move that employers are sure to “dislike,” the Second Circuit Court of Appeals has upheld a National Labor Relations Board (NLRB) decision that Facebook “likes” are protected in certain situations. Triple Play Sports Bar and Grille v. NLRB (2nd Cir. 2015).
In this case, a former employee posted that, “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!!!”
Two current employees responded to the post. One left a favorable comment and another simply “liked” the status. The company decided to “unfriend” (i.e., terminate) both employees, prompting them to file Unfair Labor Practice charges with the NLRB. The NLRB ruled in favor of the two employees, and the company appealed.
The Second Circuit held that the responses were protected concerted activity under the National Labor Relations Act, stating that “[t]he Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the employee’s] “like” of [the other employee’s] statement could evaluate the message critically in light of that dispute.”
The takeaway for employers is that the medium is irrelevant to whether speech is protected by the NLRA. Employers should consider the content of the speech, rather than its audience. Something as small as a “like” is enough to have speech protected, and any adverse employment action taken against an employee in response thereto could be an Unfair Labor Practice.
Please contact your MSEC representative if you have questions about what constitutes protected concerted activity.