Facebook “Likes” Are Protected Under NLRA

Last week, in the case of Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, the Second Circuit Court of Appeals affirmed the National Labor Relation Board’s (“NLRB”) decision that employees’ Facebook postings are protected concerted activity under the National Labor Relations Act (“NLRA”).

This case involved two employees and one former employee of a sports bar discussing – through social media – their belief that they were cheated out of wages by their employer because of alleged improper tax withholdings. More specifically, on Facebook, the former employee 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!!!!” One employee “liked” the post, and another employee commented with: “I owe too. Such an [expletive].” The two employees were then terminated and a lawsuit was filed.

Under the NLRA, employees have the right to engage in concerted activities for the purpose of mutual aid and protection, and employers are prohibited from interfering, restraining, or coercing employees in the exercise of that right. In this case, the Court noted that the “like” and comment were made by then-current employees with respect to how their wages were being treated. The Court held that such activities – here, in the form of social media use – were protected concerted activities concerning workplace rights.

Notably, the Court rejected the employer’s argument that the use of obscene language removed the communications from protected activity under the NLRA, and also found that the posts were not sufficiently disloyal or defamatory to remove the protections of the NLRA. This further demonstrates the pro-employee stance taken by the NLRB in this area. Indeed, earlier this year, the NLRA began scrutinizing policies in employee handbooks where employees could not freely discuss their workplace conditions with each other without fear of discipline.

What’s the fallout? Employers should carefully review their social media policies to ensure that they do not restrict their employees’ NLRA rights, and understand whether an employee is exercising those rights before taking an adverse employment action.