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When is a "Like" Protected Activity?

Posted on Thu, Sep 18, 2014 @ 02:43 PM

by Jack B. Harrison

While the EEOC has conew facebook like buttonnsistently been reviewing employers’ social media policies to determine whether they violate employees’ rights under the National Labor Relations Act (“the Act”), the National Labor Relations Board (“NLRB”) recently got into the act with its decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014).  Previously, an Administrative Law Judge for the NLRB addressed the issue of an employer’s social media policy in The Kroger Co. of Michigan v. Granger, case number 07-CA-098566.  Increasingly, both the EEOC and the NLRB are faced with applying a Depression era law to the very modern world of social media.  In Triple Play, the NLRB addressed both the limitations on employees when they post social media content that may be protected by Section 7 of the Act and whether simply clicking the “Like” button regarding social media content is protected activity under Section 7 of the Act.

In Triple Play, the employer, a bar and restaurant in Watertown, Connecticut, fired two employees after examining posts on Facebook that involved the employees, a former employee, and a customer.  The comments posted to Facebook were critical of the owners of Triple Play.  The comments were precipitated by employees concluding that the owners made an error in calculating the employees’ state tax withholding after the employees discovered that they owed Connecticut state taxes for 2010.  

The Facebook conversation began when a former employee Jamie LaFrance (“LaFrance”) posted the following:

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!!!!"

Additional comments followed from LaFrance’s post, including comments from a customer and a current employee of Triple Play.  In further comments, LaFrance stated that she planned to report the tax withholding mistake to the Connecticut “labor board.”  At some point during this exchange, Vincent Spinella (“Spinella”), a current employee, clicked the “Like” button related to LaFrance’s original comment.  At one point in the exchange, LaFrance posted the following comment regarding one of the owners:

Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.

In response to this statement by LaFrance, Jillian Sanzone (“Sanzone”), another current employee, posted the following:

I owe too. Such an asshole.

Upon discovering this exchange on Facebook, the owners terminated both Spinella and Sanzone, who then challenged their termination.

In reviewing this case, the NLRB concluded that, depending on the context, an employee clicking on the “Like” button related to a comment on a social media site can constitute protected activity under the Act.  In Triple Play, the employer did not challenge the conclusion that the employees had engaged in concerted activity.  However, the employer argued that the comments at issue, including the “Like” of one employee, were not protected by Section 7 of the Act because they were defamatory and disparaging.  In reviewing this issue, the NLRB held that the appropriate test when analyzing communications posted on social media is whether the employee communications are related to an ongoing dispute between the employees and the employer and whether the communications are so disloyal, reckless or maliciously untrue that they are outside the protections of Section 7 of the Act.  The NLRB based its articulation of this test for analyzing communications on social media on its prior decisions, as well as two Supreme Court decisions.  MasTec Advanced Technologies, 357 NLRB No. 17 (2011). NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966).

In applying this test in Triple Play, the NLRB determined that the comments at issue, including the “Like,” were related to an ongoing dispute between the employees and their employer and that they were not so disloyal as to place them outside the protection of Section 7 of the Act.  As the NLRB stated: “The comments at issue did not even mention the Respondent’s products or services, much less disparage them.”  The NLRB concluded that the Facebook exchange at issue in Triple Play was analogous to a conversation among employees that could possibly be overheard by an outside third party, rather than communications that were specifically targeted to the general public with the intent to harm the employer.

In its decision in Triple Play, the NLRB made clear that while the employee’s “Like” in this case was protected under Section 7, given the context, not every “Like” would be protected.  The NLRB focused on the specific context of the “Like,” determining that in this case, the “Like” was specifically directed to the initial post concerning the tax withholding, not to later statements made by the former employee that were arguably defamatory.  Thus, it would appear that the NLRB will look to the specific context of each “Like” in order to decide which specific post on social media the “Like” is directed.  Based on that analysis, the NLRB will then determine whether or not the specific post on social media to which the “Like” was directed is protected under Section 7 of the Act.

In light of the method of analysis used by the NLRB in Triple Play, employers should not conclude that an employee affirms or ratifies every statement in a discussion posted on social media simply by selecting “Like.” Instead, employers should look closely to see what specific post the employee has “Liked” or otherwise endorsed.  Additionally, before concluding that a comment posted to social media by an employee is defamatory regarding the employer, the NLRB appears to require proof that the comment was posted with “actual malice.”  In other words, in order to support a termination based on a defamatory comment about the employer on social media, the employer must prove that the employee made the comment knowing it was false or made the comment with a reckless disregard for the truth.  The NLRB also indicated in Triple Play that it will treat differently comments that disparage an employer’s products or services as opposed to comments that defame the employer or other workers personally.  Thus, employers should be very cautious, and certainly should consider consulting with counsel, prior to disciplining or terminating an employee based on the fact that an employee selected “Like” related to some comment on social media or posted some comment regarding the employer or other workers.

San Allen Litigation Claim Forms Are In The Mail

Posted on Wed, Sep 03, 2014 @ 07:21 AM

by David J. SchmittDavid J. Schmitt

This post is the latest, and perhaps the most important, follow-up to the long saga of the San Allen workers compensation litigation.

As you may recall the class in this litigation consists of Ohio employers who were not group-rated during some or all of the period of 2002-2008. The class prevailed in both the Cuyahoga County Court of Common Pleas and the Court of Appeals. Rather than continue to slug it out in the Ohio Supreme Court, the State and the plaintiff class in the San Allen v. BWC litigation recently reached a tentative settlement in the amount of $420 Million Dollars.

Proof of Claim forms have now been mailed to all members of the class and companies should receive it shortly if they have not received it already. It is essential that employers fill out this form and return it by October 22, 2014 if they wish to make a claim. Although somewhat reduced by the settlement, the potential recovery for many employers is still quite substantial. The information accompanying the form also provides a website address that employers can visit to verify the amount of their claims.

A Final Approval Hearing for the settlement is scheduled in front of Judge McMonagle of the Cuyahoga County of Common Pleas on November 19, 2014.

The Proof of Claim form asks for a company representative to certify certain information and to provide banking information so that restitution funds can be electronically transferred.

The attorney’s at Cors & Bassett are available to assist any employers who may have questions regarding the litigation or completing the Proof of Claim form. Please contact David Schmitt at 513-852-2587 or by email at

Tags: Ohio Workers' Compensation, San Allen Litigation

Federal Court Hands NCAA A Setback Allowing Some Payments to College Athletes

Posted on Tue, Sep 02, 2014 @ 02:51 PM

by Jack B. HarrisonJack B. Harrison

In a victory for student-athletes and in a setback for the NCAA, the United States District Court for the Northern District of California recently held that NCAA rules prohibiting major college football and men’s basketball student-athletes from receiving compensation for the use of their names, images and likenesses in video games and broadcasts violated federal antitrust laws.  Judge Claudia Wilken’s ninety-nine page opinion followed a three week trial which took place in June of this year. 

In the case, the plaintiffs, a group of athletes led by former UCLA basketball player Ed O’Bannon, alleged that the NCAA violated federal antitrust laws by colluding with universities and with athletic conferences to ensure that student-athletes could not receive any share of revenues that resulted from the use of their images in video games and broadcasts.  While the plaintiffs waived their right to seek damages in the case in order to be able to have the case heard by a judge, rather than a jury, Judge Wilken issued an injunction ordering the NCAA to cease enforcing rules that prohibited student-athletes from receiving funds that resulted from the use of their names and images.  In ordering the injunction, Judge Wilken specifically held that “[t]he challenged NCAA rules unreasonably restrain trade in a market for certain educational and athletic opportunities offered by NCAA Division I schools.”

In her ruling, Judge Wilken did hold that the NCAA was permitted to establish a cap on funds that could be paid to student athletes for the use of their names and images.  However, she indicated that the NCAA must permit at least $5,000 per student-athlete for every year of competition at major football and basketball schools.  Under the terms of the injunction issued by Judge Wilken, these funds could be paid into a trust by the school for every year that a student-athlete remains academically eligible to compete.  In practical terms, this would mean that student-athletes at major football and basketball schools could potentially receive no less than $20,000 when they leave school, so long as they were academically eligible for four years.  Judge Wilken indicated that she established the $5,000 cap in order to address fears expressed by witnesses on behalf of the NCAA who testified about the economic result of allowing large payments to student-athletes.  As Judge Wilken stated in her opinion, “the NCAA’s witnesses stated their concerns about student-athlete compensation would be minimized or negated if compensation was capped at a few thousand dollars per year.”

In further limiting the scope of her decision, Judge Wilken refused to hold that student-athletes should be allowed to receive funds for endorsing specific commercial products.  In so holding, Judge Wilken stated, “[a]llowing student-athletes to endorse commercial products would undermine the efforts of both the NCAA and its member schools to protect against the ‘commercial exploitation’ of student-athletes.”

Judge Wilken specifically held that her decision would not have an immediate impact on colleges and student-athletes.  The decision indicates that the court’s ruling regarding student-athletes receiving funds for the use of their names and images in video games and broadcasts would not take effect until the start of the next football and basketball recruiting period, having no effect on prospective football or basketball recruits before July 1, 2016.

While this decision would seem to erode the strong control that the NCAA has historically exercised over both schools and student-athletes, it is likely that the NCAA will appeal Judge Wilken’s ruling.  However, this decision represents a continued effort by student-athletes to be compensated in some fashion for their playing efforts, particularly when the schools for which they are playing are reaping millions of dollars in revenue from those athletic programs.  These legal developments should be of keen interest to all fans of college sports.  We will provide updates as other related developments occur.

Tags: Federal Court, NCAA