Once again, the National Labor Relations Board (NLRB) is taking a stance against employers who use social media activity as a basis for employment decisions. While the list of NLRB cases and General Counsel Memorandum on the subject of social media and protected concerted activity continues to grow, the latest decision really goes to an extreme. In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the NLRB ruled that an employee’s “like” of a discussion on Facebook about a workplace issue was protected concerted activity.
Employees of the bar were discussing some tax payment issues while at work. A former employee of the restaurant/bar had posted a status update on her Facebook page complaining about the same situation. Two current employees responded to that Facebook post. One made a comment and one simply “liked” the former employee’s status update. When Triple Play learned of the Facebook activity of its two current employees, it terminated both for disloyalty.
The NLRB determined that the employee comment and employee “like” in response to the Facebook status update were a “dialogue among employees about working conditions” protected by the Act and not so disloyal to lose protection because they did not disparage their employer’s products or services, or undermine its reputation. The NLRB also found that the Facebook activity was not defamatory to the employer, but rather, a statement of a negative personal opinion. Personally, I do not see how one’s personal opinion should get cloaked with concerted activity protection simply because the topic discussed is work, but I also would not be appointed to the NLRB by the current administration. So for now, employers must continue to be very cautious and hesitant to discipline any employee for their social media activity, particularly when such activity dances around work related issues. This decision is the epitome of why Facebook should implement a “dislike” button.