On August 22, 2014, the National Labor Relations Board (NLRB)
ruled for the first time that an employee who participated in a
Facebook discussion of his employer's income tax withholding
practices merely by using the "Like" feature in
connection with the discussion was protected by federal law.
In Triple Play Sports Bar & Grille, the owners of a
nonunionized restaurant discharged two employees – a waitress
and a cook – for their participation in an off-duty, off-site
Facebook discussion involving claims that several current and
former employees unexpectedly owed additional state income taxes
because of alleged accounting errors by their employer. A former
employee of the restaurant posted a comment on her Facebook wall
stating that the restaurant owners "can't even do the tax
paperwork correctly." The cook clicked "Like" for
this comment. The waitress responded to the comment with a comment
of her own, stating that she too owed income taxes and referring to
one of the restaurant's owners with an off-color expletive.
Neither the waitress nor the cook participated further in the
discussion, although other employees and customers continued with
comments, including one characterizing one of the restaurant's
owners as a "shady little man" who probably
"pocketed" employees' money.
The NLRB found the discharges unlawful. In this case, there was no
dispute that the initial comment exchange among employees and a
former employee about the restaurant owners not being able to
"even do the tax paperwork correctly" was concerted
activity relating to pay practices under the National Labor
Relations Act ("NLRA"). The NLRA gives employees a
general right to engage in concerted activity (that is, to act
together with other employees) with respect to wages, hours, and
other terms and conditions of employment and makes it unlawful for
employers to base adverse employment actions on such protected
concerted activities. In Triple Play, the NLRB equated
merely clicking "Like" during a Facebook discussion to
expressing agreement with the particular written comment to which
the "Like" designation related and thus granted NLRA
protection to the cook. The NLRB also found the waitress's
comment was protected, despite its use of a profane expletive to
describe one of the restaurant owners. Significantly, the NLRB
found that the waitress's comment and the cook's clicking
of "Like" on one individual posting in the discussion
effectively endorsed the former employee's original complaint
only, and the NLRB held that the discharged waitress and cook
therefore could not be held responsible for the other comments
posted in the exchange, some of which might not have been shielded
by the NLRA. The NLRB further found that the employer's
Internet/Blogging policy, which prohibited employees from
"engaging in inappropriate discussions about the
company," could be construed to prohibit the type of protected
Facebook posts that led to the unlawful discharges and thus also
violated the NLRA.
The NLRB's decision in Triple Play is noteworthy
because it expands the concept of "concerted activity"
under the NLRA to include Facebook "Likes" that are
inserted in a Facebook discussion of working conditions. It also
continues the NLRB's close scrutiny of and strict approach to
social media policies.
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