NLRB Panel Likes "Likes"

To the likely dislike of companies who aren’t careful about their social media policies, NLRB holds Facebook “liking” can be “concerted protected activity”.

I’ve written a few pieces about the National Labor Relations Board (NLRB) and social media. For readers with short memories, the NLRB has held that, under the National Labor Relations Act (NLRA), an employee can speak out on a personal Facebook, Twitter, LinkedIn or any other personal social media account without fear of retaliatory discipline if the posting is “concerted protected activity” that is “not opprobrious” in nature. The term “not opprobrious” in this context is just a fancy way of saying “be civil about it”: don’t break laws, don’t harass others, don’t defame – just be professional.

And “concerted protected activity”? To fit into that protected category, the employee’s communications must be seeking to improve or otherwise affect the conditions of his or her employment. Also, they must be made with a clear intention to get others on board (as opposed to just venting, airing grievances, etc).   

I have previously noted that the NLRB’s policy accords employees rather broad freedom from disciplinary action while it imposes on employers wishing to impose some limits on their employees the obligation to write clear and somewhat narrow social media policies. But the cases we have looked at so far have involved fully articulated expressions by the employee.

A new NLRB decision takes us into new territory: Can simply hitting “Like” be considered “concerted protected activity”?

The answer, as it turns out, is “YES” and the reasoning, in my mind, would also protect an employee who, with the proper intentions, retweets another’s critical statements.

The case involved three one-time employees – we’ll call them Vinnie, Jill and Jamie – of the Triple Play Sports Bar and Grille in Watertown, Connecticut. Thanks to an accounting error apparently made by Triple Play with respect to employee withholding, Jill and Jamie learned, to their disappointment, that they owed more 2010 state income tax than they had already paid.

 Jamie (who had already left Triple Play’s employ) did not take the news gracefully. She posted to her Facebook account:

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!!!!

Several responsive comments similarly critical of the Triple Play and its owners were posted, some of them arguably defamatory. Jill (who then still working at the Triple Play) posted a comment to Jamie’s original post – although she later testified that her Facebook settings were such that only her friends would have been able to see the comment. (Helpful Social Media Tip: Anytime you write something, you should assume someone you don’t want to see it will eventually see it.). Jill’s comment:

I owe too. Such an asshole.

Vinnie, on the other hand, only “liked” Jamie’s original post. He also was still on board at the Triple Play, but not for long.

The Triple Play promptly fired Jill and Vinnie for violating Triple Play’s “Internet/Blogging” policy. (Wait – A bar has a “blogging” policy? See below). Jill and Vinnie then filed a complaint with the NLRB.

An NLRB administrative law judge (ALJ) concluded that the overall Facebook discussion triggered by Jamie’s original post was concerted activity: it was part of an ongoing discussion of the tax withholding issue and the participants were discussing plans to raise issues at a future staff meeting and maybe even file complaints with government authorities. The ALJ also held that the discussion was “protected” activity. This included Vinnie’s “Like” of Jamie’s initial post which, in the ALJ’s view, expressed Vinnie’s support for others and therefore “constituted participation in the discussion that was sufficiently meaningful as to rise to the level of protected, concerted activity.”

The Triple Play appealed the ALJ’s decision, and a three-member NLRB panel, in a 2-1 ruling, has now affirmed the judgment for Vinnie and Jill.

The panel majority held that neither Vinnie nor Jill had – by “liking” and commenting on, respectively, Jamie’s initial post – adopted any of the allegedly defamatory comments made by Jamie or others commenting on her post. This is an important holding because, had Vinnie or Jill been found to have adopted any defamatory statements, they might have lost the protections of the NLRA altogether.

Equally important here is the holding that, because Vinnie “liked” only Jamie’s original post and did not separately “like” any of the ensuing comments, his “Like” was an endorsement only of the original post and not the entire thread.

In other words, Vinnie’s “Like”, without anything more, was an expression of agreement with Jamie’s original, clearly non-defamatory, complaint. So a “Like” is clearly expression, at least in the eyes of this NLRB panel. And that interpretation can in turn be read to say that purely mechanical acts (e.g., clicking on the “Like” button) are “expression” under the NLRA. Based on that reasoning, I’d assume that, if you retweet something in a similar attempt to be part of a conversation or garner support for protected activity, you’d be protected as well. 

The panel went even further. It held that a literal application of the Triple Play’s Internet/Blogging policy would violate the NLRB. Yes, I’m as surprised as you are that a bar has such a policy, but here’s how it read in relevant part:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

Yes, it seems reasonable on its face. You might even have come up with something similar … if you had never read this post.

But then you, like the Triple Play, would find that you’d gone too far. According to the panel, Triple Play employees would reasonably interpret the Internet/Blogging Policy as prohibiting them from engaging in protected, concerted activity – an interpretation that proved all too true when Vinnie and Jill got canned. So the panel declared Triple Play’s policy unlawful. 

Bottom line: the firings of Vinnie and Jill violated the NLRA, so the Triple Play had to reinstate them (or, if their old jobs weren’t available, give them equivalent positions); Vinnie and Jill were entitled to back pay; and, completing the sweep, the Triple Play has to rewrite its Internet/Blogging Policy to conform to the NLRA and provide inserts in its employee handbook to make sure employees are aware of the rewritten policy.

Pretty hefty stuff. A good reminder that companies really need to take care with regard to social media policies and maybe just try to look the other way when critical things are said – or, now, even clicked.

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