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NLRB Rules that Employee’s Use of Facebook “Like” Feature is Protected Activity

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On August 22, 2014, the National Labor Relations Board provided even wider latitude to employee’s use of social media in discussions of or concerning their workplace, adopting another expansive interpretation of what constitutes protected activity in the social media context. The NLRB affirmed an administrative law judge’s earlier decision that an employer had violated its employee’s rights by firing the employees for participating in a Facebook posting concerning their employer’s actions.

In the case, Triple Play Sports Bar and Grille, the owners of a nonunionized restaurant discharged two employees for their participation in an off-duty, off-site Facebook discussion involving complaints by several current and former restaurant employees who unexpectedly owed additional state income taxes because of alleged accounting errors by their employer. Among the replies to the original poster were several comments and another employee who “liked” the original post. When Triple Play learned of the Facebook activity regarding these on-line complaints, it fired the original poster and the employee who “liked” it as well.

The NLRB found the discharges to be unlawful, ruling that the exchange among the employees was concerted activity under the National Labor Relations Act (“the Act”) in which employees have a general right to engage in that kind of activity with respect to wages, hours, and other terms and conditions of employment and makes it unlawful for employers to base adverse employment actions on such concerted activities. The Board also recognized that employers have legitimate interests in preventing the disparagement of their products, services, The and reputation from defamation; however, these interests must be balanced against the interests of employees.

The Board also found that Triple Play’s Internet/Blogging policy violated section 8(a)(1) of the Act by prohibiting “inappropriate” discussions about the company. Triple Play was ordered to change its policy and to rehire the employees and pay them back pay and benefits with interest.

This decision by the NLRB is further evidence in a growing list of employee protections that employers must be extremely cautious before taking any disciplinary action against employees on the basis of social media postings. Employers are also reminded again to review their communications policies in general, and while policies prohibiting unlawful conduct that might be damaging to the employer are okay, any prohibitions must be very narrowly tailored to avoid running afoul of the law.

Hilary Atkins

Posted In: Government, Legal

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