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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.