It is common knowledge that the National Labor Relations Board (NLRB) has taken an aggressive position on employee use of social media constituting protected concerted activity. In the last few years, the NLRB has repeatedly found that employee speech on social media critical of the employer was protected from disciplinary action. It can take several years for cases to make their way through an evidentiary hearing before an administrative law judge and an appeal to the NLRB in Washington D.C. After that process has concluded, the NLRB’s decision can be appealed to the United States Court of Appeals.
The first such case to make its way to the federal courts is now pending at the Second Circuit and oral argument was held this week. The case is Three D, LLC v. National Labor Relations Board, Case No. 14-3284, and involves “Triple Play Sports Bar and Grille.” The restaurant fired a bartender over a Facebook post calling her employer an “asshole.” The posting was “Liked” by another worker which made the comment “concerted” according to the NLRB. The employer argued that the posting was capable of being viewed by customers and constituted “disloyal” or “defamatory” speech outside the law’s protections. The NLRB argued that the comment was not sufficiently inflammatory and that employees have the right to heated and even profane expressions of discontent about their working conditions.
This case is an important one to watch because it is a test case for the NLRB’s aggressive litigation stance on protection for employee social media posts. It will also be one of the first appeals court rulings on the question of whether a “like” on Facebook equates to a concerted action by multiple employees. A decision is expected late 2015 or early 2016.