NLRB Finds Employee’s Facebook ‘Like’ and Comment Protected By Labor Law

Though the National Labor Relations Act (NLRA) does not cover public safety employees working for state and local governmental employers, the decisions of the National Labor Relations Board (NLRB) have a significant influence on how state labor boards and commissions interpret state bargaining laws. For that reason, the NLRB’s latest foray into the world of social media is of interest.

The NLRB’s decision, occurring in a case known as Triple Play, involved employees of a sports bar. The employees were fired for their participating in a Facebook discussion criticizing their employer. The Facebook discussion began when a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer, writing: “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!!!! Hahahaha he’s such a shady little man. He prolly pocketed it all from all our paychecks.”

The NLRB found that Section 7 of the NLRA protected the underlying Facebook discussion about allegedly incorrect tax withholdings because the discussion related to terms of employment and was intended for employees’ mutual aid and benefit. In the eyes of the NLRB, the Facebook discussion was “concerted activity” because it involved current employees engaged in a sequence of discussions about a condition of employment, namely, the employer’s calculation of employee tax withholdings. For several years now, the NLRB has analogized social media discussions to “water-cooler talk,” long thought to be protected under the NLRA. In the Triple Play case, there was the additional fact that the employees were using their Facebook conversation seeking to prepare for concerted action by discussing issues they intended to raise at a staff meeting and considering possible avenues for complaints to government authorities.

The NLRB concluded that the first employee’s comment on the former employee’s Facebook status “effectively endorsed” the former employee’s complaint about the tax-calculation error, as did the second employee’s “like” of the former employee’s comment. The NLRB found the comments were not disloyal, and “did not even mention the employer’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.”

Three D, LLC (Triple Play), 361 NLRB No. 31 (2014).