Facebook "Like"s May Be Protected Employment Activity

posted by Michael R. Fortney  |  Oct 6, 2014 06:24 AM in Employment Law

"Like"ing a Facebook post may be a protected concerted activity under federal labor law, meaning an employer cannot retaliate against an employee because of the "like." This is according to recent decisions of the NLRB (National Labor Relations Board). In the cases, the three-member NLRB panel declared that "Under Section 7, employees have a statutory right to act together 'to improve terms and conditions of employment or otherwise improve their lot as employees' - including by using social media to communicate with each other and with the public for that purpose."

The employees in the cases both worked at Triple Play Sports Bar. Concerned about why they owed more state income taxes than usual, they began a discussion in the comments thread of one of the employee's Facebook posts about the situation. Two days after the initial post and comments, the first employee, who created the original post, was fired. The second employee, who merely liked the post, was fired the next day because the employer determined that the employee's "like" meant that he stood by the other's posted comments.  

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.

This case does not mean that anything employees "like" on Facebook is protected and cannot be used to discipline or fire them. To the contrary, the amount of comments and likes on Facebook that fall into the "concerted employment activity" category is very small.  Facebook posts that do not constitute concerted activity are not protected by the National labor Relations Act. 

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