Facebook 'likes' protected by the NLRA

Nearly a billion people are on social media pages, so the chances are that your employees are on social media, are very high.  In this case, in 2011, two employees from “The Triple Play Bar and Grille” of Watertown, CT, were terminated for a conversation about the owners that took place on Facebook.

 Just recently, the Second Circuit affirmed an NLRB ruling that the employee’s post, and the second employee’s “like,” were both covered under the NLRA, which means that their terminations were illegal.  Along with this, the court also ruled that the employer’s social media policy went too far, which unlawfully prohibited activity which is protected under the NLRA.

 This conversation started while several employees were filing their tax returns, and realized that they owed money to the state.  Many of them suspected the management had made an error while calculating their tax withholding.  Eventually a meeting was scheduled with the payroll provider, but before that, a former employee posted on Facebook a negative comment about the management.  One current employee posted on the thread, and one “liked” the original post.  When word got out about how the employees participated in the thread, they were both terminated from their positions at the restaurant.

 Originally, the employer argued that the employees were terminated because the comments were made in front of customers, as two of the customers participated in the Facebook thread, the use of obscenities, and also the two employees did not even believe the issue at hand, which the employer claimed was disparaging and defamatory towards them. 


Now, how do you protect yourself to make sure you follow the NLRA?


1.    Don’t overreact, and think it through.  Like posting on Facebook or any social media platform, many things are posted in the heat of the moment.  Instead of overreacting, think things through, and make sure what you are doing is legal.

2.    Create a clearly defined section in the employee handbook about social media.  Clearly explain what is and is not acceptable .

3.    Make sure your social media policy is compliant if the state has a social media privacy law.

4.    Contact myHRcounsel for any compliance or legal advice if you run into a situation like this to make sure you don’t run into any legal problems.  We provide first-rate support to your employment and HR questions to help employers be fully compliant.