Legal Hotline: (844) 804-2016

Question about protected activity on Facebook

Posted

Question: Does the National Labor Relations Act protect the mere act of an employee clicking the "like" button on Facebook?

Answer: The answer in a recent case is, "Yes." A former employee of a sports bar posted the following on 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!!!!"

Two current employees clicked the "like" button, and one commented, "I owe too. Such an asshole." The employer argued that the employees should have lost the protection of the Act because their statements contained obscenities viewed by customers.

The U.S. Court of Appeals for the 2nd Circuit, upholding the NLRB, disagreed:

Almost all Facebook posts by employees have at least some potential to be viewed by customers. Although customers happened to see the Facebook discussion at issue in this case, the discussion was not directed toward customers and did not reflect the employer's brand. The board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use.

Because the case involves current employees complaining about tax withholding, it was viewed as protected activity. This type of case will have to be judged on a case-by-case basis. Not all employee comments on Facebook will be protected. At some point, employees cross the line of disloyalty when they disparage the employer's product or the management team in a public manner.

Note: Nothing in this SNPA Legal Hotline Q&A should be relied upon as legal advice in any particular matter.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.


SNPA's free Legal Hotline for members – (844) 804-2016 – is designed to assist newspapers with a broad range of legal issues. Hotline attorneys and CPAs will tackle questions about circulation, independent contractors, labor and employment law, taxes, finances and accounting, employment benefits, open records, libel and privacy, and other issues newspapers encounter.

The attorneys and CPAs who will take calls from SNPA member newspapers are the best in the business:  The Bussian Law Firm PLLC, Fisher & Phillips, Way, Ray, Shelton & Co., P.C. and The Zinser Law Firm.

Legal Hotline, Zinser, Facebook, NLRB
Calendar View all