In yet another decision expanding the protection afforded to employees’ use of social media, the National Labor Relations Board (“NLRB” or the “Board”) ruled in Triple Play Sports Bar and Grille (Cases 34–CA–012915 and 34–CA–012926, August 22, 2014) that clicking “like” on a Facebook page could amount to concerted activity that is protected by the National Labor Relations Act (“NLRA”).
Two employees were discharged after each of them engaged in Facebook conversations that were critical of their employer. One of the terminated employees had commented on a “status update” by a former employee which stated that the employer could not “even do the tax paperwork correctly.” The other terminated employee had merely “liked” the status update. Both terminated employees argued that these actions constituted concerted activity but the employer countered that they were actually adoptions of defamatory and disparaging comments and, therefore, not entitled to protection under the NLRA. The administrative law judge who first heard argument ruled that the Facebook discussion was, indeed, concerted activity “because it involved four current employees . . . and was ‘part of an ongoing sequence’ of discussions that began in the workplace about the [employer’s] calculation of employees’ tax withholding. Noting that the employees, in their Facebook conversation, discussed issues they intended to raise at an upcoming staff meeting as well as possible avenues for complaints to government entities, the judge found that the participants were seeking to initiate, induce, or prepare for group action.” Moreover, the second employee’s “selection of the ‘Like’ button [on Facebook] expressed his support for the others who were sharing their concerns and ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” The employer appealed.
The NLRB agreed with the administrative law judge, finding that “off-duty, off-site use of social media to communicate with other employees or third parties” may be protected activity, so long as the statements are not “so disloyal, reckless, or maliciously untrue as to lose the [NLRA]’s protection.” The Board conceded that “an employer has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation (and the reputations of its agents as to matters within the scope of their agency) from defamation.” Here, however, the employer’s products or services were not even mentioned. Nor was there any evidence that the comments were made with malice (i.e. knowingly false or with reckless disregard as to whether they were true or false). Therefore, the employees’ actions were protected.