In an August 22, 2014 decision, the National Labor Relations Board (“NLRB”) held that employees engaged in protected concerted activity by posting and “liking” on Facebook, continuing the NLRB’s trend of adopting expansive interpretations of what constitutes protected concerted activity in the social media context. The case, Triple Play Sports Bar and Grille , is a cautionary tale for any employer who is considering disciplining employees over social media posts or activities.
In Triple Play, an employee complained on Facebook that the employer, Triple Play Sports Bar and Grille, had incorrectly filled out tax forms and the employee had to pay higher than anticipated state income tax. The employee’s post and subsequent postings in response to Facebook “friends” who commented on the post contained profanities and accused the Triple Play’s owner of being “a shady little man” who “prolly pocketed [wages] from all our paychecks.” Another employee “liked” the original post about the state income tax but did not comment or make any other postings as part of the Facebook conversation about Triple Play.
When Triple Play found out about the Facebook postings, it fired the original poster as well as the employee who “liked” the post. The NLRB commented that selecting the post for the “like” was “an expression of approval” for the original posting, and, as such, was protected activity under the National Labor Relations Act (NLRA).
While it may come as a surprise that “liking” a post is protected activity, this actually was not in dispute in the case as the employer had agreed that the terminated employees had engaged in protected activity. Rather, the issue in the case was whether the employee who “liked” the post lost the NLRA’s protection if the original posting was unprotected disparagement (which the NLRB ultimately decided it was not). The NLRB found that even if the original post had been unprotected disparagement, the “liking” of an unprotected post was still in itself protected activity.
This convoluted decision is further evidence that employers must be cautious before taking any disciplinary action against employees on the basis of social media postings, as one employee’s behavior may still be protected even if they are “liking” or otherwise approving unprotected activity. What do you think? Is “liking” something on Facebook really enough to be considered protected activity?