"Likes" on Facebook are Protected Employee Conduct

The United States Court of Appeals for the Second Circuit recently upheld a National Labor Relations Board (Board) decision holding that a sports bar violated the National Labor Relations Act (Act) when it discharged employees for commenting on and "Liking" a Facebook post critical of the employer. In Triple Play Sports Bar and Grill v. National Labor Relations Board, 2015 WL 6161477 (2d Cir., Oct. 21, 2015), the court ruled that liking posts critical of their employer amounted to protected conduct under the Act.

The case originated when a group of non-union employees who worked at the sports bar discovered they owed more employment taxes than they had originally expected. The employees discussed this at work and complained to the employer about the tax problem, and one of the employees posted the following status update 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 … [expletive deleted]!!!!

A number of comments were made to the employee's original post by a customer of the bar and another employee -- all supportive of the original post. Also, another employee selected the "Like" option to the initial status update. The discussion continued among employees and non-employees.
When the bar's owner learned about the Facebook discussion, he discharged the employee who made the original post, which the bar owner found to be defamatory and disparaging to the business. The bar’s owner also terminated the employee who "liked" the original post for the same reason.

The employees filed unfair labor practice charges with the Board. The sports bar did not dispute that the Facebook activity was concerted, and that employees have a protected right to engage in a Facebook discussion about the employer's tax withholdings. The employer, however, argued that it did not violate the Act because the original post, which the second employee “Liked” was unprotected, because it was defamatory and disparaging. Also, the employer asserted that the posts were unprotected, because they were made in a public forum accessible to customers, which could undermine the employer's authority in the workplace and adversely affect its public image.

The Board and the court rejected the employer's arguments and held that the posts were protected by the Act, specifically finding that the use of the "Like" option was protected conduct. In reaching this conclusion, the court reasoned that while obscenity-laden employee outbursts in front of customers generally is not protected conduct, the same rule did not apply to social media. The court reasoned that adopting such a rule “could lead to the undesirable result of chilling virtually all employee speech online. Almost all Facebook posts have at least some potential to be viewed by customers …. 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 Board's decision was not surprising because the Board has taken an expansive view of the Act's protections extending to social media activity. The important takeaway from this decision, however, is that a court agreed with the Board's broad views of social media use by employees regarding their employment. Therefore, this decision serves as a good reminder that, before disciplining an employee for social media posts, employers should appreciate that posts that reflect negatively on the employer are not necessarily legitimate grounds for discipline.