Monday, October 26, 2015

Employers might not “like” this protected concerted activity decision

Does the National Labor Relations Act protect the mere act of an employee clicking the “Like” button on Facebook? According to Triple D, LLC v. NLRB (2nd Cir. 10/21/15) [pdf], the answer is yes.

The case involved the following Facebook post by a former employee of a sports bar, complaining about some incorrect income deductions from her paycheck:

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!!!!

Two then-current employees, Spinella and Sanzone, interacted with that post—Spinella clicked the “Like” button, and Sanzone commented, “I owe too. Such an asshole.”

The employer argued that the employees should have lost because Sanzone’s and Spinella’s Facebook activity contained obscenities viewed by customers. The 2nd circuit disagreed:

[A]accepting Triple Play’s argument … could lead to the undesirable result of chilling virtually all employee speech online. Almost all Facebook posts by employees have at least some potential to be viewed by customers. Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer’s brand. The Board’s decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use

What can employers learn from this decision?

  1. Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity. This aspect of the decision makes sense. A Facebook “like” is an endorsement or expression of one’s support for the post or comment.
  2. The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech. Employees must go far afield of socially acceptable speech to impact their NLRA rights. The mere use of an obscenity by the employee is not enough.

The ultimate lesson about employers’ regulation of employees’ online speech has not changed: While employees must think before the click, employers must think longer before they discipline for fire because of that click. The NLRB, and now the courts, are watching, and, more often than not, the decisions do not favor the employer.