Employee Facebook Likes Are Protected Activity, Appellate Court Rules
Author: David B. Weisenfeld, XpertHR Legal Editor
October 27, 2015
In a first-of-its-kind ruling, the 2nd Circuit Court of Appeals has held that Facebook "likes" can be protected activity under the National Labor Relations Act (NLRA).
The case involved a Facebook status update in which a former sports bar employee expressed indignation and used profanity to describe an alleged error the bar had made regarding her state payroll tax withholdings. A current employee used Facebook's "like" feature to endorse the post. Another employee said he too had been the victim of payroll errors and also used a profanity. The sports bar fired the two employees. The court held that the firings violated the NLRA because the employees' activity involved an ongoing labor dispute.
The employer argued that the Facebook activity was unprotected under the NLRA because it contained obscenities that customers could view. The appellate court disagreed, finding that the discussion was not directed at customers and did not reflect the employer's brand. The court explained that almost all Facebook posts by employees have at least some potential to be viewed by customers and that accepting the employer's argument could lead to the undesirable result of chilling virtually all employee online speech.
This case, the court reasoned, merely involved an ongoing dispute over income tax withholdings. The NLRB has repeatedly stated that workers have the right to discuss issues involving their wages, hours and working conditions on social networking sites with co-workers.
While ruling in favor of the fired employees, the appellate court acknowledged that employees' public communications may lose NLRA protection if the comments are sufficiently disloyal or defamatory and disconnected from any ongoing labor dispute.
Connecticut employment attorney Daniel Schwartz called the decision "a strikeout for employers" in his blog. Schwartz said the ruling forces an employer to think twice before firing an employee just for "liking" what it views as an obnoxious Facebook post.