See If You “Like” This: NLRB Rules That Commenting on or Liking Another’s Facebook Post Can Constitute Protected Activity

The NLRB recently ruled that employees’ use of Facebook’s “like” button can constitute protected concerted activity under Section 7 of the National Labor Relations Act, and that the employer’s termination of the employees was an unfair labor practice under the Act. The employees worked at Triple Play Sports Bar and Grille, and were non-unionized.

It all started when an ex-employee complained on Facebook about owing taxes she claimed Triple Play failed to withhold.

“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!!!!”

The post garnered comments, including mentions of a future meeting to address the issue, and the potential filing of a formal complaint. In the same thread, the ex-employee then posted comments that one of the Triple Play’s owners was a “shady little man” and suggested that he was pocketing money. A waitress still employed at Triple Play then commented in the same thread:

“I owe too,” she wrote. “Such an a**hole.”

Another then-current employee, a cook, simply pressed Facebook’s “like” button; specifically, the “like” button that was displayed for the original post regarding tax paperwork. Triple Play subsequently terminated the employment of both employees for violating its social media policy.

The NLRB held that the terminations were an unfair labor practice because they were made in response to the employees’ protected, concerted activity. Under Section 8(a)(1) of the NLRA, employers are prohibited from interfering with the exercise of employees’ rights to organize or engaged in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB recently has issued several rulings establishing that protected concerted activity may take place online, including on social media.

Triple Play did not dispute that the ex-employee’s original post regarding tax paperwork was concerted activity. Instead, it argued that the two fired employees made defamatory and disparaging comments in that they “endorsed” the ex-employee’s comments calling the owner a “shady little man” and insinuating he was pocketing money. Therefore, the NLRA did not protect their conduct. The NLRB panel disagreed, explaining that the fired waitress’s comment regarding being owed money and the fired cook’s pressing of the “like” button were in further discussion to the original post (undisputedly a protected activity) rather than the ex-employee’s later post, which may not have been protected.

The NLRB also invalidated Triple Play’s social media policy, which prohibited “inappropriate discussions about the company, management, and/or co-workers,” because employees reasonably could interpret the policy as prohibiting them from engaging in protected activity. Thus, the policy unreasonably chilled the employees’ exercise of their NLRA rights.

Practical Pointers:

• Employers should keep in mind that Section 8(a)(1) of the NLRA applies to all employers, not just employers with unionized employees.
• Employers should review their social media policies to ensure that their policies reasonably cannot be interpreted to interfere with employees’ rights to engage in protected concerted activity under the NLRA.
• Employers also should consider that there are numerous social media equivalents to Facebook’s “like” button, the use of which likely would lead to the same result in the NLRB’s eyes. For example, Instagram, Tumblr, Twitter, and LinkedIn all have similar “like” features, as do news aggregators like Digg and Reddit, which allow members to “vote” on content. Additionally, an employee’s sharing (on Facebook or LinkedIn), retweeting (on Twitter), or re-pinning (on Pinterest) of another’s post, article, or photo may be considered protected concerted activity, even where the employee is not personally expressing any judgment regarding the content.