The National Labor Relations Act (NLRA) gives employees the statutory authority to act together “to improve the terms and conditions of employment or otherwise improve their lot as employees.” Traditionally, that “protected concerted activity” has taken the form of in-person conversations or meetings. More recently, however, employees have turned to social media to conduct their organizing efforts. The National Labor Relations Board (NLRB) has concluded that Facebook posts and comments deserve the protection of the NLRA, but the Board hadn’t addressed the concept of a Facebook “Like”—until now. In a recent decision involving a sports bar and two of its former employees, the NLRB determined that a Facebook “Like” is protected concerted activity. 
Facts
Triple Play Sports Bar and Grille is co-owned by Thomas Daddona and Ralph DelBuono. In January 2011, Jillian Sanzone, a waitress and bartender at Triple Play, learned that she owed more than expected in state income taxes. She discussed her unpleasant discovery with her coworkers, and a few complained to Triple Play. In response, the company planned a staff meeting with its payroll provider in February 2011 to address the employees’ concerns.
On January 31, 2011, Jaime LaFrance, one of Sanzone’s former coworkers, posted on her Facebook account, “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correct!!! Now I OWE money . . . wtf!!!” Customers and coworkers responded to her comments. Victor Spinella, a cook at Triple Play, “Liked” LaFrance’s remark, and Sanzone commented, “I owe too. Such an asshole.”
Daddona learned about the Facebook discussion from a family member who was Facebook friends with LaFrance. When Sanzone arrived at work on February 2, 2011, Daddona told her that she was being discharged because she hadn’t been loyal enough, as evidenced by her comment on Facebook.
When Spinella reported to the work the following day, Daddona and DelBuono called him into their office, asked him if he “had a problem with them, or the company,” and interrogated him about the Facebook post, the meaning of his “Liking” it, and the names of others who had participated in the online discussion. Spinella shared that his “Like” meant that he stood behind LaFrance and other commenters. Daddona and DelBuono replied that because he had “Liked” the “disparaging and defamatory comments,” it was “apparent” that he wanted to work elsewhere, and they fired him, too.
As Spinella was leaving, they warned him, “You’ll be hearing from our lawyers.” Although no lawyers ever contacted Spinella, Triple Play’s lawyers sent Sanzone a letter that raised the possibility of a defamation action.
NLRB’s analysis
Triple Play didn’t dispute that Sanzone’s and Spinella’s Facebook activities were protected or concerted activity. Instead, the company argued that because they essentially adopted LaFrance’s allegedly defamatory and disparaging remarks, they lost the NLRA’s protection. Triple Play also argued that because the Facebook posts were made in a forum accessible to both employees and customers, the posts undermined the owners’ authority in the workplace and harmed the restaurant’s public image. The Board disagreed.
The NRLB began by identifying the employee conduct at issue. It found that Sanzone’s comment effectively endorsed LaFrance’s complaint about owing taxes because of Triple Play’s tax-withholding error. Although it noted that Spinella’s “Like” was a bit more ambiguous, the Board treated his action “as expressing agreement with LaFrance’s original complaint,” too. The NLRB rejected the argument that either Sanzone or Spinella could be held responsible for other Triple Pay employees’ and customers’ responses to the original post.
In concluding that neither Sanzone’s nor Spinella’s Facebook activities lost the NLRA’s protections, the Board made several findings. First, it noted that the Facebook discussion clearly centered on an ongoing labor dispute about Triple Play’s tax-withholding obligations. Second, it found that no one’s comments, particularly not Sanzone’s or Spinella’s, were directed at the public. They were made on an individual’s Facebook page, not the company’s page. Third, it noted that neither Sanzone’s nor Spinella’s Facebook activities were so disloyal that they lost the NLRA’s protection. The comments didn’t mention, let alone disparage, Triple Play’s products or service but rather sought to “provide mutual support” and “group action to encourage the employer to address problems in terms or conditions of employment.”
Having found that Sanzone’s and Spinella’s actions were protected by the NLRA, the Board concluded that Triple Play’s response to their actions violated the law. Specifically, the NLRB found that the company’s decisions to discharge Sanzone and Spinella, as well as its statement that it was terminating them because of their Facebook activity, were unlawful. The Board also found Triple Play’s threats of legal action and the interrogation of Spinella unlawful.
Consistent with its ruling, the NLRB entered an order that, among other things, requires Triple Play to offer Sanzone and Spinella full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions. The company must also compensate them for earnings and other benefits they lost because of the discharge.
Bottom line
It’s often difficult to discern what is (and isn’t) protected concerted activity, especially in the age of social media. The law is in flux, and the facts are often fluid. If you’re concerned about an employee’s statements on a social media website, print the comments immediately and forward them to an attorney. As a best practice, wait to take disciplinary action based on employees’ social media statements until after you’ve consulted with an attorney.
Amanda Shelby is an associate with Faegre Baker Daniels’ labor, employment and benefits group, practicing in Indianapolis, Indiana. She concentrates on a variety of employment-related matters, including representing employers in litigation and counseling clients on best practices in compliance. She may be contacted at amanda.shelby@FaegreBD.com