In an ever expanding arc of decisions that extends the NLRA’s protections to a wide range of employee conduct – both on-and off-duty, and in union and non-union settings alike – the NLRB last week decided that merely clicking on Facebook’s “Like” Button was concerted, protected activity. Triple Play Sports Bar, 361 NLRB No. 31 (August 22, 2014).
Triple Play Sports Bar is a non-union employer whose owners had a little difficulty preparing annual payroll tax calculations, and as a result, employees owed state income tax in arrears. One of the employees – not happy at the prospect of back taxes – posted on her Facebook “Status Update,”
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‼!
Other employees chimed in with comments of their own (“[the owner] f***** up the paperwork…as per usual”; “[the owner is] such a shady little man. He prolly [sic] pocketed it all from our paychecks…”; “Such an a******”), as did a couple of the Sport’s Bar’s customers. But one employee simply pressed the “Like” button and made no other comments. Company owners terminated the employees for defamation and disloyalty.
The Board, following precedent, found the commenting employees’ conduct to be concerted, protected activity. And the Board went on to answer a question that has been keeping labor relations folks awake at night: Is pressing the innocuous little “Like” button on Facebook “sufficiently meaningful” to rise to the level of concerted, protected activity? According to the Board, it certainly can be. Although the Board members admitted that the “Like” button was ambiguous, they interpreted it here “solely as an expression of approval for the initial status update” (which was protected).
The Board went on to find that the other employees’ scathing comments did not lose the protection of the Act, since they were related to a dispute about working conditions (tax withholding), were not directed to the general public, and were not disparaging of the employer’s products or services, reckless, or maliciously untrue. Finally, the employer’s Social Media Policy was unlawfully overbroad in its prohibition of “inappropriate discussions.” In light of the fact that employees had been terminated for participating in a Facebook discussion about the employer and its owners, the employer provided employees with an “authoritative indication” of the scope of its prohibition.
Tread cautiously before terminating employees (union or not) who engage in any activity that could be construed as “concerted” and “protected.” If the “Like” button is protected, what’s next? A “wink-wink” emoticon? 😉