As our big Labor Day weekend kicks off, it seems appropriate to bring back a “labor” topic, particularly when mixed with one of our favorite topics here: Social Media.
Today, my colleague Jarad Lucan returns with a case straight out of Connecticut with national implications.
As most readers of this blog have read before (here, here, here — you get the point), Section 7 of the National Labor Relations Act gives employees the statutory right to “improve terms and conditions” of employment or otherwise improve their lot.
The NLRB has said in recent years that this right includes the use by employees of social media to communicate with each other and the public for that purpose.
This isn’t the first time that the issue of a Facebook “like” has made legal headlines. A federal court case last year ruled that a Facebook “like” could be protected speech in some instances under the First Amendment, for example.
And I should point out that the new NLRB case involves a number of interesting issues related to employee use of social media and employers regulation of that use. Because this post only addresses the NLRB’s approval of the “Like” option as part of protected concerted activity, I encourage readers to take a look at the decision in their spare time.
In short, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.
The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “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 . . . W[*]f!!!!”
LaFrance also posted about the accounting error, blaming it on the owner of Triple Play and stating that “It’s all Ralph’s [the owner] fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”
Following this second post, Spinella selected the “Like” option under the LaFrance’s initial update. The discussion continued with several comments being posted, including one from LaFrance referring to Ralph as a “shady little man” who probably “pocketed it all from our paychecks.”
This Facebook discussion was brought to the attention of the owners of Triple Play who subsequently terminated Spinella because he “’Liked’ the disparaging and defamatory comments,” including LaFrance’s references to Ralph and his pocketing of money.
The NLRB, however, determined that Spinella’s termination violated the Act.
According to the NLRB, Spinella merely “Liked” the comments related to Triple Play’s alleged inability to complete tax paperwork correctly and failure to pay a former employee’s wages.
The NLRB rejected the employer’s argument that Spinella’s “like” related to the comments about Ralph, stating that it interpreted Spinella’s “Like” solely as “an expression of approval” of the initial status update. Had Spinella wished to express approval of any of the additional comments deriving from the initial status update, he could have “liked” them individually. He did not.
The NLRB, therefore, found that, even if the “shady little man” and “pocketed it all” comments were defamatory and therefore unprotected, Spinella’s use of the “Like” option during the discussion did not attribute those particular comments to him and he could not be terminated because of them.
Although this is the first case issued by the NLRB addressing an employee’s use of the “Like” option on Facebook, it appears that the NLRB’s position is that “Liking” comments that amount to protected concerted activity is itself protected concerted activity. Frankly, it’s not altogether surprising given the recent cases decided by them.
But whether “liking” comments that are defamatory (i.e. maliciously untrue or made with knowledge of their falsity) or that publically attack an employer’s product or services is protected is a question left for another day.
So, feel free to “like” this post. We won’t hold it against you.