The National Labor Relations Board (“NLRB”) delivered an order stating that when someone clicks the “like” button on Facebook it is “protected concerted activity” under the National Labor relations Act (“NLRA”).  Triple Play Sports Bar, 361 NLRB 31.  This decision by the NLRB applies to both union and non-union workers.

The case of Triple Play Sports Bar arose when employees at the Triple Play Sports Bar discovered that the employer was under-withholding state income taxes.  The employees were disappointed and they did not receive the amount of tax refund that they were anticipating.  A former employee posted on Facebook “Maybe someone should do the owners a favor and buy it from them.  They can’t even do the tax paper work correctly!!!  Now I OWE money…WTF!!!!”  After this post other employees joined this Facebook conversation and often using profanity in their comments.

One current employee, Vincent Spinella, did not write a comment, but rather, clicked “like” on the comment which was very critical to the owner’s bookkeeping abilities.  When Triple Play Sports Bar found out about this activity, Spinella was told that “because he ‘liked’ the disparaging and defamatory comments,” it was “apparent” that Spinella “wanted to work somewhere else.”  Triple Play Sports Bar then fired Spinnella because he was disloyal and defamed the owners.

The decision by the NLRB in Triple Play Sports Bar case states, “that the employees, in their Facebook conversation, discussed issues that they intended to raise at an upcoming staff meeting as well as well as possible avenues for complaints to government entities, the judge found that the participants were seeking to initiate, induce, or prepare for group actions.  As a result, the judge concluded that the Facebook discussion was concerted under the standard set forth in Myers Industries, 281 NLRB 882, 887 (1986).”  The NLRB found that just clicking “like” is not sufficiently disloyal or malicious for employees to lose their protection by the NLRA.  The NLRB found that the termination of employment was unlawful.

The NLRB also invalidated the Triple Play Sports Bar’s social media policy for banning “inappropriate discussions” about their employer.  The NLRB felt that this policy was too broad and might chill employees from properly discussing terms and conditions of their employment.

In an era when individuals are ever increasingly making their thoughts and feelings available online, individuals should be mindful of the information they plan on displaying especially when it relates to their employers.  Although the NLRB’s decision discussed here demonstrates that simply “liking” someone’s post about an employer may not be enough for an employer to fire that employee, employees should still think before they “like”.