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Social Media Law: Can an Employee be Fired for a Facebook Like?

Time for another social media law update. Last year a federal appeals court ruled that Facebook “Likes” are speech protected by the First Amendment. Now the National Labor Relations Board has issued a ruling concerning an employee who was fired for liking another employee’s Facebook status update – which, as you might expect, was critical of the company.

The case in question is Triple Play Sports Bar & Grille, 361 NLRB No. 31.

I’ve written in the past about the NLRB’s rulings on matters related to social media (here’s one such post from a few months ago). To recap: the NLRB has taken a strong stand on employers’ social media policies with respect to the National Labor Relations Act (the “NLRA”). The NLRA does not allow an employer to take actions or have a policy that has the may actually or potentially “chill” an employee’s right to engage in protected concerted activity. Concerted activity essentially means discussing work conditions with other employees. The Act is violated if employees would reasonably interpret the language of a policy to prohibit Section 7 activity or if the policy has been applied to restrict the exercise of Section 7 rights (this is referring to Section 7 of the NLRA).

Vincent Spinella worked as a cook as a cook for Triple Play. In January 2011, several employees discovered that they owed more than they had expected in state income taxes. A complaint was made to Triple Play, who called for a staff meeting in February.

On January 31, a former employee, Jamie LaFrance, posted the following comment on Facebook:

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!!!!

As you may imagine, a colorful exchange of comments ensued. After a few such comments were posted, Spinella liked LaFrance’s original post. On February 3 Spinella was fired due to his having clicked “Like.”

Remember above where I mentioned “concerted activity?” That’s a key phrase here. In 2012, an administrative law judge…

…found that the Facebook discussion was concerted activity because it involved…current employees…and was “part of an ongoing sequence” of discussions that began in the workplace about [Triple Play’s] calculation of employees’ tax withholding. Noting that the employees, in their Facebook conversation, discussed issues they intended to raise at an upcoming staff meeting as well as possible avenues for complaints to government entities, the judge found that the participants were seeking to initiate, induce, or prepare for group action. As a result, the judge concluded that the Facebook discussion was concerted…[and] that Spinella’s selection of the “Like” button expressed his support for the others who were sharing their concerns and “constituted participation in the discussion that was sufficiently meaningful as to rise to the level of” protected, concerted activity. (Emphasis mine.)

As a result, the judge concluded that Spinella had been “unlawfully discharged.” This decision was reviewed by a NLRB panel.

Bear in mind that employees can’t necessarily just say anything they want, anywhere they want. The panel noted, in its Order:

The [NLRB] has long recognized that an employer has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation (and the reputations of its agents as to matters within the scope of their agency) from defamation. Section 7 rights are balanced against these interests, if and when they are implicated.

The panel, agreeing with the administrative judge, found…

…that Spinella’s…comments were not “so disloyal . . . as to lose the Act’s protection”…The comments at issue did not even mention [Triple Play’s] products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected. (Again, emphasis mine.)

Therefore, Spinella’s firing was held to be unlawful.

Interesting note: the panel found that employee discussions of this type on Facebook, although they may be completely public depending on the poster’s privacy settings, are “clearly more comparable to a conversation that could potentially be overheard by a patron or other third party than the communications at issue in [another case], which were clearly directed at the public.” Clearly.

As in most of these cases, the bottom line is clear: employees have broad latitude when it comes to discussions concerning conditions of employment. This applies even if those discussions take place online. And a Facebook “Like” may not be sufficient grounds for termination.

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