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Second Circuit Affirms NLRB View That Facebook "Likes" Are Protected Concerted Activity

    Client Alerts
  • November 02, 2015
Last week, the Second Circuit Court of Appeals backed the National Labor Relations Board’s position that employee social media postings are protected concerted activity under federal law, even if they use obscenities that could be viewed by customers. Three D, LLC v. NLRB involved a sports bar where several employees believed they had been cheated out of wages by a manager. One employee posted an obscenity-filled Facebook post about the manager and his behavior with regard to his pay, and other employees either added supporting comments or “liked” the original posting. Once brought to management’s attention, the bar fired all employees involved with the communications.

When faced with an unfair labor practice charge, the employer contended that the use of obscene language to describe the manager removed the communications from protected status under Section 7. The NLRB and Second Circuit disagreed, concluding that the Facebook comments constituted typical social media communications. Use of obscene language in the context of social medial communications is different from employees shouting obscenities at a manager directly in front of customers.

More importantly, the Second Circuit affirmed the Board’s broad view of protections over employee social media use. Regardless of the potential harm to the business resulting from public awareness of disputes, employee participation in even heated on-line discussions of work conditions, whether directly or through “liking” others’ comments, remains protected concerted activity.

The Second Circuit’s decision is unpublished, meaning that it has no direct precedential value in the Second Circuit. A few days after the decision, the NLRB’s counsel asked the Second Circuit to publish the decision (the court subsequently denied this request). This move indicates the Board’s view of the importance of extending clear protections over employee social media activities.