It gets boring to blog just about the NLRB. We need some judicial action to get the juices flowing a little more. We got a little something last week.

Question: Is merely clicking the “like” button on Facebook tantamount to protected speech? I’ve argued that “liking” isn’t necessarily an act with any content at all. It could mean a lot of things, not the least of which could be that one Facebook user is simply “tagging” something with a “like” so that that user can have his or her “friends” see what the user has “tagged/liked.” Yes, I’m getting annoyed with all the quotes too.

In any event, the answer: Apparently yes. I first discussed the issue here on May 8, 2012, and again here on October 22, 2013. Then last year, on September 29, 2014, I noted here how the NLRB continued its pro-employee leanings by finding the click of the Facebook “like” button to constitute protected speech in In Re: Three D, LLC d/b/a Triple Play Sports Bar. In that case, employees were fired essentially for “liking” a post that was critical of their employer sports bar.

Just last week though, the 2d Circuit Court of Appeals affirmed the NLRB’s decision. The Court spilled much ink on the appropriate deference to be afforded to a governmental entity like the NLRB, before going through an analysis of whether the employee’s click of the “like” button was protected and concerted (it held “yes”) and then whether the employee otherwise acted in such a disloyal manner to lose the protections under federal law (it held “no”). Implicit there is that the decision really assumed that merely “liking” something was an activity or speech that has sufficient substance to be protected in the first place.

The next step in this case, at least procedurally, is for both sides to argue whether this “summary order” by the 2d Circuit should be published as an actual order with precedential value (Note: according to 2d Circuit rule, “rulings by Summary Order do not have precedential value). But that’s like saying “don’t clean up the toothpaste that’s already out of the tube,” or “don’t go get that horse that’s out of the barn,” or, well, you get it.  The 2d Circuit has spoken on this issue, and is the first appellate court to do so. Whether you like it or not.

Employer Take Away:   What should you as an employer take away from this development?   

So what’s next? A lawsuit over an employer firing an employee because it didn’t like a chosen emoji?  I don’t know. What I do know is that your company still needs to carefully engage in the appropriate analysis when deciding whether to take adverse action against an employee for doing something – anything? – on social media. It’s not just what the employees expressly say, it may also be what they click.