An old adage says, “A picture is worth a thousand words.” Recently, circuit courts have applied this expression to social media activity and found there may be more to a Facebook “like” than a simple click of the mouse button. These courts have given expansive meaning to a “like” and found employment law protections to lie within this common social media activity.
The most recent development came late last year in the Second Circuit Court of Appeals case of Three D LLC v. NLRB. The Second Circuit considered whether an employer could lawfully terminate employees because they “liked” comments on a Facebook discussion concerning tax deductions allegedly made in error by the employer. The court examined whether this adverse employment decision violated the National Labor Relations Act. The NLRA prohibits all employers from terminating an employee for participating in concerted, protected activity – that is, doing something with other employees to address workplace terms and conditions.
The Second Circuit upheld the lower court’s decision that the employees’ “likes” were concerted, protected activity under the NLRA and found their discharges based on those “likes” were unlawful.
This decision follows a 2013 Fourth Circuit Court of Appeals decision in Bland v. Roberts that similarly found a “like” to be protected expression under the First Amendment. Specifically, the court found that a sheriff deputy’s “like” of the Facebook page of the sheriff’s opponent in an election was speech protected by law.
The puzzle of social media and employment law regulations is growing more complex by the day. Employers should consult with counsel well-versed in the intricacies of these issues before acting on employee social media activity. What may at first seem like terminable misbehavior could in fact be legally protected expression.
-Jesse Dill (@jesse_dill) is an attorney practicing labor and employment law at Walcheske & Luzi LLC in Brookfield.
