On October 21, 2015, the US Court of Appeals for the Second Circuit upheld the National Labor Relations Board’s (NLRB) ruling that a Facebook “like” can be protected concerted activity under the National Labor Relations Act (NLRA)—this underlying NLRB decision was reviewed in detail in our previous post regarding Triple Play v. Sazone and Triple Play v. Spinella.
In short, the recent judicial endorsement of the NLRB decision reinforces that not only written social media activity can be protected, a simple Facebook “like” may be as well—in this particular case, the protected act was the “liking” of a negative post related to employer tax withholdings and the alleged failure to pay a former employee’s wages. Because the post/conversation at issue was work-related, an employee’s support/“like” of the post was found to be protected. The Court did note that there are limits to the NLRA’s protections, including instances in which a post or comment is both defamatory and maliciously untrue—no doubt we will be seeing cases delving into this issue in the coming years.
In the meantime, an employer should think twice before terminating an employee for a Jerry Maguire-worthy post decrying the conditions of the workplace—or “liking” something similar.