NLRB Protects Facebook "Like" and Signals Standard for Analyzing Social Media Posts

by Akerman LLP
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An employer violated the National Labor Relations Act ("NLRA") by discharging two employees for participating in a Facebook posting by a former employee, according to the National Labor Relations Board ("NLRB"). One of the discharged employees merely clicked the "Like" icon under the former employee’s posting.

For employers, the two decisions highlight the importance of recognizing employees’ legally protected concerted activity, even when it occurs on social media outside the workplace. Protected concerted activity occurs when employees take action for their "mutual aid or protection" regarding terms and conditions of employment.

Bartender/waitress Jillian Sanzone and cook Vincent Spinella, employees of Triple Play Sports Bar and Grille ("Triple Play"), participated in a Facebook posting after a former Triple Play employee, Jamie LaFrance, posted the following comment on Facebook:

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!!!!

Spinella clicked the "Like" icon under LaFrance's comment and various other employees and customers commented on the social media posting. In response to one of the comments to her original posting, LaFrance commented that one of the owners is "such a shady little man. He prolly [probably] pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there." Sanzone then commented, "I owe too. Such an asshole."

Triple Play fired Sanzone and Spinella, who responded by filing charges with the NLRB alleging that Triple Play violated Section 8(a)(1) of the NLRA by discharging them in retaliation for their protected concerted activities. In 2012, an administrative law judge (ALJ) ruled that the discharges were unlawful because Sanzone and Spinella were engaged in protected concerted activity when they had a discussion with other workers about the calculation of their tax withholdings.

The NLRB affirmed the ALJ’s rulings on August 22, 2014, in Triple Play v. Sanzone, Case No. 34–CA–012915, and Triple Play v. Spinella, Case No. 34–CA–012926. According to the NLRB, the fact that the discussion took place on social media did not lessen the protection for the employees. "Spinella’s selecting the ‘Like’ option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity[,]" the NLRB wrote.

According to the NLRB’s ruling, Triple Play did not dispute that the Facebook postings at issue were concerted activities for the purposes of mutual aid or protection. Instead, Triple Play argued that the two fired employees had adopted defamatory and disparaging comments made by other workers and, as a result, lost the NLRA’s protection. But the NLRB noted that, while employers have legitimate interests in preventing the disparaging comments and defamation, the interests must be balanced against the interests of the employees. Because Spinella’s "Like" and Sanzone’s comment did not accuse Triple Play "of pocketing employees’ money" or otherwise "endorse[] any comment by LaFrance to that effect", the "comments were not so disloyal… as to lose the Act’s protection." Sanzone's comment had "effectively endorsed LaFrance’s complaint that she owed money on her taxes due to a tax-withholding error" on Triple Play’s part. "While Spinella's ‘like’ is more ambiguous, we treat it for purposes of our analysis as expressing agreement with LaFrance’s original complaint," the NLRB stated. "We reject the respondent’s contention that Sanzone or Spinella can be held responsible for any of the other comments posted in this exchange."

The Sanzone and Spinella decisions should serve as a reminder to employers that employees do not lose the protection of the NLRA when they participate in protected concerted activity outside the workplace, including on social media. Employers should also be aware that the threshold for establishing protected concerted activity is not high. At least according to the NLRB, even clicking on Facebook’s "Like" icon can suffice.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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