2nd Circuit Agrees with NLRB; Facebook "like"s are Protected Activity

posted by Michael R. Fortney  |  Oct 29, 2015 09:06 AM in Employment Law

In 2014 the National Labor Relations Board (NLRB) issued its ruling in Triple Play Sports Bar. It decided that "like"ing a Facebook post may be a protected concerted activity under federal labor law, which means an employer cannot retaliate against an employee because of the "like." The case centered around two employees who were concerned about why they owed more state income taxes than usual. One of the employees created a facebook post. Another employee commented and in so doing called the employee's boss an "asshole." The other employee proceeded to "like" that comment. The NLRB ruled that the post and the subsequent "like" were protected activity under the National Labor Relations Act (NLRA), because Section 7 of the NLRA gives employees rights to organize, including forming or joining labor organizations and engaging in other concerted activities. The Facebook comments and "like"s were protected as a concerted activity because four current employees were involved in the discussion, and the discussion concerned issues arising in their common workplace.

The 2nd Circuit Court of Appeals agreed with the NLRB. The two issues that the NLRB focused on were the "asshole" comment and the employer's policy laid out in its handbook. Triple Play attempted to show that since a disparaging remark was made about the employee's boss, and customers saw that post on Facebook, the post loses its protection under the NLRB's 2012 standard laid out in NLRB v. Starbucks Corp. The 2nd Circuit disagreed, and held that applying that standard to a Facebook post could have a serious chilling effect of virtually any online employee speech. “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," the panel held. "Almost all Facebook posts by employees have at least some potential to be viewed by customers.” 

The panel also held that the employer's policy that by “engaging in inappropriate discussions about the company management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment,” violates the NLRA because it has the same chilling effect on employee speech discussed above. 

Employers should review and revise their social media policies and/or handbooks to ensure they fit within the 2nd Circuit's definition of protected concerted activities. Employers who do not have handbooks or social media policies should create those policies. Additionally, employers should always consult with an attorney before terminating an employee who may have been engaged in concerted activities with fellow employees. 

If you have additional questions or concerns regarding creating or revising your policies or handbook provisions, or if you have other questions concerning your employees, please visit our website

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