The National Labor Relations Board (“NLRB”) has now issued the first labor ruling on whether Facebook “likes” can be legally protected. On August 22nd, the National Labor Relations Board ruled that a Connecticut bar and restaurant violated the National Labor Relations Act (“NLRA”) when it dismissed two employees participating in a Facebook discussion that was critical of their employer, engaging in what the Board deemed to be “protected, concerted activity.”

The case involved two employees at the Triple Play Sports Bar and Grille, a bartender and waitress, Jillian Sanzone, and cook, Vincent Spinella. The pair was promptly fired after engaging in a series of allegedly defamatory and disparaging posts and “likes” on Facebook. The Facebook discussion itself involved several employees but started with a status update by a former Triple Play employee, Jamie LaFrance, who claimed that the bar and restaurant owners “couldn’t even do the tax paperwork correctly” and someone should do the owners “a favor” and buy the business from them. While Sanzone commented on the status update, but more significantly, Spinella, for his part, merely “liked” LaFrance’s status update, which the Board acknowledged was “more ambiguous.”

The Board nevertheless opted to treat the “like” as Spinella’s expression of his approval of LaFrance’s original complaint in his status update. The Board however, limited its interpretation of Spinella’s like, finding it only supported the original status update and holding that in order to be interpreted as supporting the entire threat, Spinella would have had to “liked” each and every subsequent post in response to LaFrance’s original status update.

Going a step further, the Board also found the bar and restaurant’s “Internet/blogging” policy, which prohibited “inappropriate discussions” about the company, management or other workers, to be unlawful and in violation of the NLRA. The Board found the policy could be reasonably interpreted as barring employees from engaging in protected activities under the NLRA.

This unprecedented decision by the NLRB offers employers some insight into the Board’s stance towards employers that discipline or terminate employees over social media activity. Employers should take heed of this ruling in evaluating how to structure its policies and conduct discipline for misconduct on social media, and reach out to Kelley Drye for additional guidance.