The National Labor Relations Board is at it again – wading into the social media foray, that is.
In a case that has been percolating since 2011, the NLRB has ruled that an employer must reinstate an employee who was fired for "LIKING" an anti-management post on Facebook, as well as provide the employee with back pay and benefits.
Yep. You heard it right. For "LIKING" a Facebook post.
On August 22, 2014, the NLRB held that a waitress and a cook – two employees previously fired from Triple Play Sports Bar for "LIKING" and commenting on a post of a former disgruntled employee – must be reinstated, and receive back pay and benefits. In analogizing the "LIKE" to an exercise of free speech about workplace conditions concerning management's alleged improper tax withholding, the Board held that "LIKE" constituted sufficient participation in the on-line conversation such that it rose to the level of concerted activity protected under Sections 7 and 8 of the National Labor Relations Act.The full opinion is available here: Triple Play v. Sazone and Triple Play v. Spinella.
The ruling upheld the lower administrative law judge's finding that the original posting and the subsequent related comments and "Likes" constituted protected discussions about the employer's calculation of the employees' tax withholdings.
In addition, the Board reversed the administrative law judge's ruling that the employer's social media policy was acceptable. The Board found the following policy language too broad: "inappropriate discussions about the company, management, and/or co-workers," and held such language could discourage employees from on-line discussions of workplace-related issues. The fact that two employees were fired because of such on-line discussions, the Board held, proved the policy was improper.
So why should you care about this case as an employer? Because the National Labor Relations Board is watching everything you do with regard to employees' protected speech. Don't go firing an employee for a Facebook post until after you speak with counsel to make a determination whether their speech is protected under the Act, or not.