NLRB Holds Facebook "Likes" Can Be Protected, Concerted Activity

On August 22, 2014, the National Labor Relations Board (NLRB) ruled that clicking Facebook's "like" button can be protected, concerted activity.

Triple Play Sports Bar and Grille fired two workers after discovering a discussion on Facebook between several current and former employees regarding the bar's tax withholding calculations. A former Triple Play employee posted on Facebook, "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!!!!" Employee Jillian Sanzone commented on the status, "I owe, too. Such an asshole." Employee Vincent Spinella "liked" the original status. 

Sanzone was fired on the spot upon her return to work. Spinella was "interrogated" about the Facebook discussion, the meaning of his "like" and the identity of those involved in the conversation. He was then terminated and threatened by Triple Play with potential defamation claims. 

Triple Play argued unsuccessfully that that Sanzone and Spinella adopted defamatory and disparaging comments made by the other individuals involved in the conversation, and lost the NLRA's protection. The NLRB rejected Triple Play's contention that the two employees should be held responsible for the remaining comments in the exchange. 

With the ruling, the NLRB adopted an administrative law judge's January 2012 conclusion that the two employees were fired in violation of the National Labor Relations Act (NLRA). The NLRB agreed that Sanzone's comment had effectively endorsed the complaint that the former employee owed money on her taxes due to a tax-withholding error on Triple Play's part. As to Spinella's "like," the board opined, "While Spinella's ‘like' is more ambiguous, we treat it for purposes of our analysis as expressing agreement with [the] original complaint."

The NLRB not only found the firings unlawful but went a step further, reversing the administrative law judge with respect to Triple Play's "Internet/blogging" policy — and its prohibition on inappropriate discussions about the company, management or other workers — and finding that policy unlawful. The NLRB found that Triple Play's blogging policy was aimed at stopping employees from saying anything negative about the bar online and was therefore an effort to chill protected, concerted activity.

While the ruling is the NLRB's first vis-a-vis Facebook "likes," it falls into a line of recent decisions regarding communication via social media and the concept of protected, concerted activity by the NLRB. (Our past alerts on these decisions can be reviewed under "legal updates" down the left side of this page.) Before disciplining or terminating employees based upon conduct on social media, it is important to first consider whether their rights under the NLRA are impacted.

A copy of this NLRB decision is available to the public on the NLRB Board Decisions web page.