In Ruling that a Facebook “Like” is Protected Concerted Activity, the NLRB Provides Employers With Guidance on Identifying Protected Social Media Activity

Paula Lopez, August 27, 2014.

The National Labor Relations Board (NLRB) issued a ruling in the case Triple Play Sports Bar and Grille affirming the administrative law judge’s decision that two employees who were terminated because of their involvement in Facebook discussions about claims that their employer had made State tax withholding errors were unlawfully discharged in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). This decision is significant on two fronts. First, because Vincent Spinella’s (one of the terminated employees) only involvement in the Facebook discussions consisted of clicking “like” on one of the comments posted on the page. Therefore the NLRB’s ruling makes it clear that the mere act of clicking “like” may constitute concerted activity protected by the NLRA. Second, it is significant because the NLRB has provided guidance on how allegedly defamatory and disparaging comments made in social media will be analyzed to determine whether an employer is justified in disciplining an employee for engaging in such activity.

While this is the first time the NLRB has addressed whether a Facebook “like” could constitute protected concerted activity, the ruling does not come as surprise and was highly anticipated in light of last year’s Fourth Circuit decision in Bland v. Roberts, which held that act of “liking” a Facebook page amounted to speech protected by the First Amendment. As explained by the Fourth Circuit, “[l]iking on Facebook is a way for Facebook users to share information with each other…On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.” In light of the Fourth Circuit’s decision, it did not require much of a leap for the NLRB to find that clicking the “like” button on a comment made about an employer’s tax withholding errors is activity protected under the NLRA.

Triple Play’s main argument before the NLRB in justifying the terminations was that, even if the employees’ act of participating in the Facebook discussion about mistakes in the tax withholdings amounts to protected concerted activity, many of the comments made by others during the discussion were defamatory and disparaging and not subject to protection under the Act. Therefore, when the employees adopted these comments their activity was so disloyal that it was no longer protected under the Act. In finding that the employees’ activity did not lose protection under the Act, the NLRB has provided insight into how comments made in social media that are claimed to be defamatory and disloyal will be scrutinized. The NLRB ruled that the criteria set out by the U.S. Supreme Court in Jefferson Standard and Linn will be used for determining whether public statements made about an employer rose to the level of unprotected disloyal disparagement.

In Jefferson Standard, the Supreme Court upheld the discharge of employees who distributed handbills publicly attacking the quality of their employer’s broadcasting products without any reference to a labor dispute or to wages, hours or working conditions. The Court found that the nature of the attacks constituted a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies in a manner reasonably calculated to harm the company’s reputation and reduce its income.” Such conduct amounted to disloyal disparagement not subject to protection under the NLRA. In Linn, the Court held that remedies for claims of defamation made during a union organizing campaign were limited to instances where the complainant can show that the “defamatory statements were circulated with malice and caused him damage.” In showing that the statement was made with malice, the employer has the burden of showing that it was made “with knowledge of its falsity, or with reckless disregard of whether it was true or false.”

In establishing Jefferson Standard and Linn as the framework for analyzing whether an employer is justified in taking disciplinary action and applying this framework to the comments at issue in Triple Play , the NLRB was able to distinguish the Facebook comments from those at issue in those cases. Unlike the activity in Jefferson Standard, the Facebook comments related to an ongoing labor dispute about the tax withholding mistakes, the discussions were not directed to the public in general but were posted to an individual’s personal page, and they did not mention Triple Play’s products or attack the quality of their products or services. In addition, Triple Play was unable to meet its burden of demonstrating that that comments made were maliciously untrue, making them defamatory.

While the Triple Play decision confirms the increasing protections being afforded by the NLRB to employees engaging in social media activities, it has also provided employers with guidance on when such activities have crossed the line from protected concerted activity to disloyal attacks justifying disciplinary action.