Legal

Employers Might not ‘Like’ This Protected Concerted Activity Decision

By Jon Hyman

Oct. 26, 2015

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 they 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.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Compliance

Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog

Legal

New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog

Legal

Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law