from the so now you know dept
A couple of years ago, we wrote about a rather troubling legal ruling in which a court declared that Facebook “likes” aren’t a First Amendment protected expression. The ruling made little sense. It involved some employees of a local sheriff getting fired after “liking” the Facebook profile of the sheriff’s opponent in the next election. Thankfully, that key part was overturned on appeal, with the 4th Circuit appeals court ruling that Facebook likes absolutely could be protected speech. Now, facing a somewhat similar issue, the National Labor Relations Board (NLRB) has similarly concluded that a Facebook like can be a form of “concerted protected activity” for which you cannot be fired.
The story involved a restaurant, Triple Play Sports, that apparently made an accounting error concerning the amount of taxes withheld in paychecks. Because of this, some of the restaurant’s employees had to pay more taxes. A former employee, Jamie LaFrance, who this impacted had posted angrily to 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!!!!
A current employee, Jillian Sanzone, added this helpful comment:
I owe too. Such an asshole.
Another current employee, Vincent Spinella, “liked” Sanzone’s comment. Soon after, Sanzone and Spinella were fired. Triple Play argued that they were fired for violating the restaurant’s “Internet/Blogging Policy,” which is an actual thing, apparently. It’s also noteworthy that a number of other Triple Play employees took part in the conversation, and were not fired. Triple Play actually argued that the fact that it kept the other employees on board showed that it wasn’t targeting protected concerted action. However, the NLRB disagreed. It first found that the entire discussion was concerted activity (it helped that one of the other employees talked about raising the issue at a future meeting). Triple Play appealed and the NLRB still said it was protected activity. As Kevin Goldberg at the CommLawBlog summarizes:
Equally important here is the holding that, because Vinnie ?liked? only Jamie?s original post and did not separately ?like? any of the ensuing comments, his ?Like? was an endorsement only of the original post and not the entire thread.
In other words, Vinnie?s ?Like?, without anything more, was an expression of agreement with Jamie?s original, clearly non-defamatory, complaint. So a ?Like? is clearly expression, at least in the eyes of this NLRB panel. And that interpretation can in turn be read to say that purely mechanical acts (e.g., clicking on the ?Like? button) are ?expression? under the NLRA. Based on that reasoning, I?d assume that, if you retweet something in a similar attempt to be part of a conversation or garner support for protected activity, you?d be protected as well.
The panel further noted that Triple Play’s internet policy was itself a violation, since it effectively would ban protected concerted activity. This is not the first time that the NLRB has gotten involved in social media either. A few years back, we wrote about it issuing some warnings that it would not look kindly on firing people based on them speaking out on social networks. This ruling shows that it’s living up to that promise.