Facebook “Like” Protected Speech Under the NLRA

We all have them. Friends and family who overshare on Facebook. Their food choices (complete with pictures), exercise routine, and relationship drama, all solidified in the form of a status update. Annoying maybe, but mostly harmless, right? 

But what about status updates about work? Particularly those that criticize a company, supervisor, or work environment? Can your friend’s employer terminate or take recourse against him? Or does social media fall into a category of protected speech the employer cannot touch?

On October 21, 2015, the Second Circuit helped answer this question by upholding a prior National Labor Relations Board (NLRB) decision, which found a Facebook "like," along with comments from two employees was protected under the National Labor Relations Act  (NLRA).

In Triple Play Sports Bar and Grille v. NLRB, a former employee took to Facebook and posted this status update after receiving her tax return: "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!!!"

Triple Play terminated two employees who responded to the post. It felt their responses to the original post disparaged the company. Notably, one of those employees did not post a comment, but simply "liked" the status update. 

On appeal, the Second Circuit upheld the NLRB's decision that the original post and subsequent responses was protected, concerted activity, and sufficiently meaningful to warrant protection. The NLRB also ruled the comments were not disparaging or disloyal because they did not relate to the business of the employer, its service, or its product. Rather, the Facebook discussion related to an ongoing labor dispute, and anyone who saw the “like” or other responses could evaluate the message critically in light of that dispute.

The court rejected Triple Play’s attempt to liken the case to NLRB v. Starbucks Corp. There, the panel found employees who engage in outbursts containing obscenities, in front of customers, may lose the protection afforded by the NLRA. In rejecting the application of  Starbucks, the court found equating online speech to speech “in the presences of customers” would chill virtually all online speech by employees.  

So what's the lesson for employers? An online rant among employees may be protected activity. Before terminating an employee for such rants, employers must carefully consider whether the speech was directed at customers and reflected on the employer’s brand. If it is not, the employer has no recourse. As the Second Circuit acknowledged, toleration of employee complaints about their employer is the reality of modern day social media use.