The NLRB recently issued another case on employer social media policies, ruling that clicking Facebook’s “Like” button can constitute “protected, concerted” employee activity under the National Labor Relations Act (NLRA).

A former employee of Triple Play Sports Bar and Grille, a non-union employer in Watertown, Connecticut, was upset that Triple Play’s owners had under-withheld her state income taxes, resulting in an unanticipated tax liability. She promptly 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 carefully!!! Now I OWE money … Wtf!!!!

Several others (employees and customers) then posted derogatory and profanity-laced comments about Triple Play’s owners and their actions to the former employee’s Facebook page. At one point, Vincent Spinella, a cook at Triple Play, clicked the “Like” option under the initial “status update.” Jillian Sanzone, a waitress and bartender, posted a supportive if vulgar comment: “I owe too. Such an a**hole.” Upon discovering this Facebook conversation, Triple Play’s owners promptly discharged both Spinella and Sanzone.

Enter the NLRB. The NLRA prohibits an employer from taking action against employees who engage in “concerted activities for the purpose of … mutual aid or protection.” So does a Facebook “Like” or a profane comment qualify? They do according to the NLRB, which found the following:

  • Spinella’s Facebook “Like” was an endorsement of the former employee’s complaint made in her initial “status update.” Both Spinella’s “Like” and Sanzone’s comment constituted “protected, concerted” activity under the NLRA.
  • Spinella and Sanzone’s activity did not lose the protection of the NLRA, despite the fact that the activity came in the midst of the profanity-laced commentary, which even included a comment by the former employee that the owner was a “shady” man and had probably pocketed the employees’ money.
  • Triple Play’s discharge of Spinella and Sanzone was a violation of the NLRA.

The NLRB also held that Triple Play’s social media policy violated the NLRA. That policy stated, among other things, that the company’s employees were subject to disciplinary action if they engaged in “inappropriate discussions about the company, management, and/or co-workers…” The NLRB found the policy unlawful because the employees “would reasonably understand” the policy to prohibit “discussions and interactions” protected by the NLRA and would be improperly “chilled” from exercising their NLRA rights.

This case is a reminder of how closely the NLRB will scrutinize employer social media policies to determine whether these policies impede employee rights. To avoid problems at the NLRB, employers must be sure that these policies are properly drafted and enforced.