NLRB decision further solidifies Facebook ‘likes’ as concerted protected activity

Upholds judge’s decision that employees were discussing work condition issues

Under the National Labor Relations Act (NLRA), employees are protected from employer retaliation when they engage in “concerted protected activity.” That is, activity associated with workers voicing their concerns or opinions about the way they are treated or paid on the job. A National Labor Relations Board (NLRB) decision released on Aug 22 now reinforces that, that protection extends that to Facebook “likes.”

The case at hand involves a tax issues at Triple Play Sport Bar and Grille of Waterbury, Conn. When Triple Play indicated in January of 2011 that employees owed additional taxes because of mistakes they had on their filings, some of the employees took to Facebook to air their “dissatisfaction.”

Former employee Jaime LaFrance posted an update on the social media site saying, “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!!!!”

The comment kicked off a conversation that involved a number of former Triple Play employees as well as soliciting a “like” from cook Vincent Spinella and a response from waitress, Jillian Sanzon.

Upon returning to the restaurant for her shift, Sanzon was told she was being discharged for her lack of loyalty; this was despite the fact that her privacy settings only allowed her Facebook friends to see her comments. In the following days Spinella was also confronted by the restaurant owners who interrogated the meaning of his “like” status to the comment, ultimately resulting in his dismissal and a threat of a lawsuit for defamation, which never manifested.

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When the employees later sued for wrongful discharge, the judge found that the discussion was “concerted protected activity,” which the restaurant owners eventually appealed to the NLRB.

While the NLRB has previously had to weigh in on whether or not employee activity was a valid concern about their jobs or just outright complaining, one thing is certain -- the board views social media no differently as a platform for engaging in “concerted protected activity” then, say, a labor rally. As a result comments and concerted activity is protected under the NLRA, and that protection now also extends to “likes.”

According to the NLRB decision, “We agree with the judge that the discharges were unlawful. We also adopt the judge’s findings that the respondent violated the act by threatening employees with discharge for and interrogating employees about their Facebook activity, as well as by informing employees they were being discharged because of their Facebook activity. In addition, we adopt the judge’s finding that the Respondent unlawfully threatened legal action for engaging in that activity.”

In addition to those findings, the NLRB also admonished a “blogging policy” that Triple Play had instituted which was aimed at stopping employees from saying anything negative about the bar online. This was seen by the Board as an effort to chill “concerted protected activity.”

Managing Editor

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Chris DiMarco

Chris DiMarco, Managing Editor of InsideCounsel magazine, has a background in multimedia production with previous involvement in projects in which he developed and created content for...

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