Decision on “Like” Facebook Protection is Appealed

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September 16, 2014

I recently blogged about a decision from the National Labor Relations Board holding that an action by a worker to “Like” a comment on Facebook about the poor conduct of a company was considered protected speech under the National Labor Relations Act. The NLRB found that the termination of an employee for “liking” a comment on Facebook was a violation of the Act and called for reinstatement of the employee. That decision has now been appealed to the Federal Court of Appeals.

The case involved Triple Play Sports Bar and Grill and inappropriate comments on Facebook by a former employee about the failure of the company to properly withhold state income taxes, which comment was “Liked” by two then current employees. The company terminated the two employees for their actions.

The case has now been appealed to the Second Circuit Court of Appeals. The company is looking for a review of the decision by the NLRB that has been identified as a very employee-friendly agency. The hope is that this review by the Court of Appeals will provide a check and balance to the number of decisions by the NLRB that have provided for broad protections to employees. In this case, the NLRB gave protection to employees who criticized their employer and, in theory, adopted the insulting language from the post by the former employee.

The NLRB, in its ruling, also found that the “Internet/Blogging” policy adopted by the company was too broad and could be construed to restrict employees from their protected speech rights. That ruling will also be subject to argument before the Second Circuit.

Employers should continue to monitor this case because it will give us some guidance regarding the nature and extent of protected speech rights for employees and how the protected rights will intersect with social media and internet usage.

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