Employers Won’t “Like” the NLRB’s Latest Social Media Decision

Employers Won’t “Like” the NLRB’s Latest Social Media Decision

The National Labor Review Board (NLRB) continues to cause headaches for New York and New Jersey employers. On the heels of its General Counsel’s controversial position on franchise liability, the Board recently ruled that “liking” a Facebook post could constitute protected activity.

Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in “concerted activity” for their “mutual aid and protection. In prior decisions, the Board has broadly interpreted the protections of the NLRA to include social media conversations among coworkers about their terms and conditions of employment, including their wages, job performance, and staffing levels.

Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Accordingly, the Board has also found that enacting strict social media policies that interfere with employees’ rights to engage in concerted, protected activities as well as terminating workers in response to certain social media activities can violate the Act.

In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the Board ruled that simply liking a Facebook post could warrant protection under Section 7 of the NLRA.

After learning that he owed taxes, former Triple Play Sports Bar & Grille (Triple Play) employee, Jamie LaFrance, posted the following status update on 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!!!!”

Employees and customers subsequently commented on the post, including current employee Jillian Sanzone, who commented in reference to the original post and another about the bar’s owner, “I owe too. Such an asshole.” Another worker, Vincent Spinella, clicked the “Like” icon under LaFrance’s comment. After learning about their social media activities, Triple Play subsequently fired Sanzone and Spinella for disloyalty.