09/13/2014

Clicking The "Like" Button On Facebook Is Now A Protected Activity?

In recent years, the National Labor Relations Board (NLRB) has issued decisions that protect employees using Facebook and other social media to criticize their employers. Posting comments on Facebook and other social media may be a protected concerted activity under the National Labor Relations Act (NLRA). Evidently, the NLRB is now expanding its reach to cases where an employee simply clicks the “like” button under a Facebook post.

In the Triple Play Sports Bar case, a former employee posted on Facebook that she was upset with the sports bar because she had to pay more in income taxes than expected. She wrote on her Facebook page:

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!!!!!

Several employees of the sports bar commented on the post. One employee posted “I owe too. Such an a…hole.” Another employee did not comment but clicked the “like” button. When the owners of the sports bar found out about the Facebook post, they summoned the two employees into the office and confronted them about their comments. They were both fired. The employees filed charges with the NLRB alleging that they were engaged in a protected and concerted activity and the NLRB agreed.

According to the NLRB, the online discussion regarding tax liabilities was a protected concerted activity because it related to working conditions. The employee who had clicked the “like” button was merely expressing his support of others who were complaining about the employer’s handling of tax paperwork. Thus, the Company committed an unfair labor practice by discharging him from employment.

The NLRB also found that the employee who commented “I owe too” and “Such an a…hole,” had likewise engaged in a protected concerted activity. Triple Play argued that the comment was disloyal and should not be protected because the comment reflects a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The NLRB disagreed with Triple Play noting that the comments were made pursuant to a labor dispute and were not directed to the general public.

Where are the takeaways from all this?

• Even without a labor union in the workplace, an employee can pursue an unfair labor practices charge under the NLRA if he or she engaged in a protected concerted activity and was subjected to adverse action.
• Postings and communications on social media which air grievances concerning wages and conditions of employment are generally protected. In the Triple Play Sports Bar case, the employees were complaining about income tax withholding and their outrage resulting from the employer’s accounting practices.
• Employees may be protected by simply clicking the “like” button and agreeing with comments that are critical with the way a company handles matters relating to wages or employment terms and conditions.
• Although the NLRB will balance an employee’s right to engage in concerned activities with an employer’s right to punish employees who are disloyal, it is clear that the NLRB is granting more leeway to employees who criticize their employers and even use profanity to communicate their complaints.