In Three D, LLC v. NLRB, Nos. 14-3284, 14-3814 (2d Cir. Oct. 21, 2015), Three D discharged two employees after they commented on and “liked” a Facebook post criticizing Triple Play’s tax withholdings from employees. The National Labor Relations Board ruled that the discharges violated the National Labor Relations Act, and the Second Circuit affirmed. The court held that the employees’ Facebook activity constituted protected concerted activity because it was part of an ongoing discussion among then-current employees that began in the workplace and concerned complaints about calculations of tax withholdings. The court further ruled that the comments – although profane – were not so disloyal or defamatory as to lose the protection of the Act. The court determined that the comments and “likes” were made to seek and provide mutual support looking toward group action, and that the Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and anyone who saw the statements could evaluate them critically in light of that dispute.
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Facebook Comments And “Likes” May Be Protected By Federal Labor Law
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