Clicking “Like” may now be considered protected activity

We’ve all heard horror stories about an employee posting something about work on Facebook or Twitter and later being fired for it. Well, a case in Connecticut may have just given employers a bit more guidance on what is protected activity under Section 7 rights under the National Labor Relations Act with regard to Social Media.  In other words, can you fire an employee for what they write or what they “Like” on social sites?

Quick overview of the case:
Triple Play is a sports bar and grill operating in Connecticut and when preparing their tax returns in January 2011, a large number of employees discovered they owed money to the state. As several complaints rolled in from employees who suspected the employer had made a mistake in calculating  state tax withholdings, the owner scheduled a staff meeting with the current employees and the payroll provider.

A recently separated employee, Jaime LaFrance, took to Facebook and began the following conversation: “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!!!!”

There were many comments that followed including a comment from a sympathetic restaurant customer and current employees. The separated employee made a remark in the conversation that was potentially defamatory by insinuating that the owner had pocketed the tax withholdings. Shortly after that comment, another current employee “liked” LaFrance’s original comment on Facebook. As a whole, the conversation was not very becoming of the employer and included foul language. One current employee commented saying “I owe too. Such an A**hole”. The owner of the restaurant learned of the conversation and reviewed it. As a result, both of the current employees were terminated for their participation in the conversation.

Ultimately the NLRB ruled that the employees were wrongfully terminated because they were participating in Protected speech – but why? The conversation was considered protected because the discussion related to terms of employment and was intended for employee’s mutual aid and benefit. The NLRB ruled that since the current employee only liked the original comment and not the potentially defamatory comment, this behavior was also protected. Furthermore, the employee that commented on the conversation was also only responding to the original statement of the conversation and her referral to the owner in foul language was merely an expression of her opinion rather than a statement of fact.

Is your head spinning yet? As an employer, I imagine it’s a bit frightening to think that Facebook activity may be considered protected, especially when it’s unbecoming to a company! Perhaps, Triple Play’s owner could have used our tips on responding to reviews on social media! You may also want to check out Littler’s full breakdown of the case and suggestions to employers!

Note: The employer filed an appeal, but in October 2015, the Second Circuit upheld the decision of the NLRB!