You Can't Be Fired For 'Liking' A Colleague Calling Your Bosses 'Assholes' On Facebook

from the so-now-you-know dept

A couple of years ago, we wrote about a rather troubling legal ruling in which a court declared that Facebook "likes" aren't a First Amendment protected expression. The ruling made little sense. It involved some employees of a local sheriff getting fired after "liking" the Facebook profile of the sheriff's opponent in the next election. Thankfully, that key part was overturned on appeal, with the 4th Circuit appeals court ruling that Facebook likes absolutely could be protected speech. Now, facing a somewhat similar issue, the National Labor Relations Board (NLRB) has similarly concluded that a Facebook like can be a form of "concerted protected activity" for which you cannot be fired.

The story involved a restaurant, Triple Play Sports, that apparently made an accounting error concerning the amount of taxes withheld in paychecks. Because of this, some of the restaurant's employees had to pay more taxes. A former employee, Jamie LaFrance, who this impacted had posted angrily 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!!!!

A current employee, Jillian Sanzone, added this helpful comment:

I owe too. Such an asshole.

Another current employee, Vincent Spinella, "liked" Sanzone's comment. Soon after, Sanzone and Spinella were fired. Triple Play argued that they were fired for violating the restaurant's "Internet/Blogging Policy," which is an actual thing, apparently. It's also noteworthy that a number of other Triple Play employees took part in the conversation, and were not fired. Triple Play actually argued that the fact that it kept the other employees on board showed that it wasn't targeting protected concerted action. However, the NLRB disagreed. It first found that the entire discussion was concerted activity (it helped that one of the other employees talked about raising the issue at a future meeting). Triple Play appealed and the NLRB still said it was protected activity. As Kevin Goldberg at the CommLawBlog summarizes:

Equally important here is the holding that, because Vinnie “liked” only Jamie’s original post and did not separately “like” any of the ensuing comments, his “Like” was an endorsement only of the original post and not the entire thread.

In other words, Vinnie’s “Like”, without anything more, was an expression of agreement with Jamie’s original, clearly non-defamatory, complaint. So a “Like” is clearly expression, at least in the eyes of this NLRB panel. And that interpretation can in turn be read to say that purely mechanical acts (e.g., clicking on the “Like” button) are “expression” under the NLRA. Based on that reasoning, I’d assume that, if you retweet something in a similar attempt to be part of a conversation or garner support for protected activity, you’d be protected as well.

The panel further noted that Triple Play's internet policy was itself a violation, since it effectively would ban protected concerted activity. This is not the first time that the NLRB has gotten involved in social media either. A few years back, we wrote about it issuing some warnings that it would not look kindly on firing people based on them speaking out on social networks. This ruling shows that it's living up to that promise.

Filed Under: concerted protected activity, facebook likes, free speech, likes, liking, nlra, nlrb
Companies: triple play sports

Labor Board Continues To Warn Companies Not To Fire People Based On Tweets

from the protected-activity dept

Earlier this year, we wrote about how the National Labor Relations Board (the NLRB) had noted that a post on Facebook complaining about a boss represented "protected concerted activity" under the NLRA and thus you couldn't be fired for that. Many people in our comments simply insisted this wasn't true. However, the NLRB appears to be continuing to make this point. Thomas O'Toole draws our attention to a report on a number of recent NLRB statements and activities that again make it clear that it won't look kindly on firings over people speaking out on social networks about their workplace.

• Protected Concerted Activity: In a discipline case, the Board will take a very broad view when deciding whether the employee�s social media activities constituted �protected concerted activity� under the NLRA. The Regional Director�s handout states, �It doesn�t take much to establish the concerted nature of the discussion, so long as it involved or touched upon a term or condition of employment,� and �anything short of physically threatening activity will likely be protected.�
• Recent Cases: The NLRB continues to be active in the area. The handout provides four examples of recently filed complaints, or threatened complaints, involving social media in addition to the case against AMR. These cases show just how broadly the Board construes �protected concerted activity.� They involved, according to the handout, negative comments about a supervisor posted on Facebook, a posted cartoon video about a dispute between two departments, a Facebook discussion about the employer�s withholding of taxes, and a Facebook discussion about the employer�s decision to fill an open position with an outside, rather than an inside, applicant.

So it appears, yet again, that the NLRB is taking an extremely broad view on what constitutes protected activity on social networks. While I understand where the NLRB is coming from, it does seem that this viewpoint is excessive. It may be (and likely is) silly for most companies to fire an employee for venting about their job on Facebook or Twitter, but should it really be illegal? I recognize all too well how much effort went into making sure that employees had the ability to be protected for "concerted activity." The idea was to stop companies from firing people for gathering together to stand up for their rights. But should that really extend to situations involving people bitching about their bosses? Again, it might not be smart for companies to fire people who do that... but should it be against the law?

Filed Under: nlra, nlrb, protected concerted activity, social media
Companies: facebook, twitter