The Law @ Work

Facebook “Likes” Protected by the National Labor Relations Act

by John S. Gannon


I like you.  You like me.  Are we protected by the NLRB?  A new decision demonstrates that employees who “like” social media content just might be.

The National Labor Relations Board recently ruled that an employee who “liked” a status on Facebook was engaging in protected concerted activity.  Generally speaking, protected concerted activity is conduct where coworkers act together to improve working conditions.  Employees cannot be fired, disciplined or otherwise penalized for taking part in such activity.  We previously discussed NLRB decisions that examined whether social media conversations constituted protected concerted activity here, here and here.  However, none of those cases involved simply “liking” a Facebook status.

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), current and former employees of a Connecticut sports bar were upset over how much they owed in state income taxes.  Logically, they blamed their employer.  One former employee posted the following to 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!!!!”  Her social media rant continued when she blamed the owner for “[bleeping] up the paperwork,” and suggested she planned to call the labor board to look into the matter.

Vincent Spinella, a cook at the sports bar, “liked” the initial Facebook post.  Management found out about the conversation and called Spinella to their office.  When Spinella arrived, management had the Facebook conversation displayed on a computer screen.  They interrogated him about his “Like” selection, asking why he would do such a thing and demanding that he name the others involved.  The employer then fired Spinella for making “disparaging and defamatory comments.”  To add insult to injury, management threatened Spinella on his way out, stating he would be hearing from the sports bar’s lawyers for defaming the establishment.

That didn’t happen.  Instead, the employer heard from the NLRB.  The Board concluded that Spinella’s termination was unlawful because he was fired for engaging in protected concerted activity.  Although he simply “liked” a comment, rather than providing any real commentary of his own, this was enough to gain protection under the National Labor Relations Act.

The social media world is fast moving, as is the law governing employee use.  This November, attorneys from Skoler Abbott will be presenting at the EANE Annual Employment Law & Human Resource Practices Update, where social media will be a discussion topic.  Contact EANE for more information.


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