The 2nd Circuit Court of Appeals recently affirmed a controversial NLRB decision finding an employee’s Facebook “Like” protected concerted activity.
The “Like” at issue in Triple Play v. NLRB followed this exchange between coworkers:
“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly !!! Now I OWE money … Wtf!!!!”
“I owe too. Such an asshole.”
According to the Court, in “Liking” the posts, the employee had “at maximum endorsed [the coworker’s] claim that Triple Play had erred in her tax withholding.” Because there were multiple employees involved, the posts and the “Like” were “concerted.” Similarly, because the discussion related to employee pay, the posts and “Like” were “protected.”
The employer tried to argue that the Facebook activity was “so disloyal or defamatory as to lose the protection of the Act,” but the Court rejected that argument, noting, among other things, that the posts did not disparage the company’s products or services.
Following the rash of NLRB decisions issues in the last couple of years, we’re finally starting to see how Courts handle these cases as they wind their way through our judicial system. At least in Triple Play, the Court followed the reasoning of the NLRB. It will be interesting to see if this holds true in other “Facebook firing” cases.
What do you think? Is a “Like” sufficient to constitute protected concerted activity? How would you handle a similar situation?