Unlike many issues, it seems that at least one issue (so far) has the NLRB on the same page as a recent court decision: whether clicking “like” on Facebook amounts to substantive, protectable speech. In my earlier blog posts on May 8, 2012 and October 22, 2013, I discussed a Virginia case where the appellate court, in an 81-page decision, ultimately ruled that to “like” a Facebook page is the 2013 version of protectable speech. However, that case arose out of a Constitutional challenge. How would the NLRB decide the issue when it comes to employee speech under the National Labor Relations Act (“Act”)? You need to ask?
The NLRB has continued its seemingly pro-employee leanings by considering the click of the “like” button to constitute protected concerted activity entitled to protection under the Act. In In re Three D, LLC d/b/a Triple Play Sports Bar, the NLRB agreed that the company violated the Act “by discharging two employees for their participation in a Facebook discussion involving claims that employees unexpectedly owed additional State income taxes because of the [company’s] mistakes.” The case seems to clearly involve protected activity inasmuch as the employees’ discussion involved the company’s practice relating to, or at least impacting, wages. The question became whether the employees who “liked” the employees’ rants were sufficiently adopting the content of those rants to be protected under the Act.
On that issue, the NLRB noted that, while clicking “like” may be “more ambiguous” than engaging in the actual discussion, nevertheless it still constitutes “expressing agreement” with the co-worker’s original complaint.
Employer Take Away: What should you as an employer take away from this development?
The company in that case has since petitioned the Court of Appeals for the Second Circuit for a possible appellate analysis of whether “liking” something is necessarily akin to substantive discussion or adoption of substantive content, and the extent to which employees criticizing a company through social media may lose the Act’s protection. Depending on the Second Circuit’s decision, this may be the first opportunity for judicial guidance on the NLRB’s recent expansive view of social media and protected concerted activity. Other positions taken by the NLRB over the past couple of years, such as the permissible scope of workplace policies, class action waivers, etc., and the appropriate deference owed to the NLRB, will also be at stake.