Like It Or Not, Your Employees Can Like It

It gets boring to blog just about the NLRB. We need some judicial action to get the juices flowing a little more. We got a little something last week.

Question: Is merely clicking the “like” button on Facebook tantamount to protected speech? I’ve argued that “liking” isn’t necessarily an act with any content at all. It could mean a lot of things, not the least of which could be that one Facebook user is simply “tagging” something with a “like” so that that user can have his or her “friends” see what the user has “tagged/liked.” Yes, I’m getting annoyed with all the quotes too.

In any event, the answer: Apparently yes. I first discussed the issue here on May 8, 2012, and again here on October 22, 2013. Then last year, on September 29, 2014, I noted here how the NLRB continued its pro-employee leanings by finding the click of the Facebook “like” button to constitute protected speech in In Re: Three D, LLC d/b/a Triple Play Sports Bar. In that case, employees were fired essentially for “liking” a post that was critical of their employer sports bar.

Just last week though, the 2d Circuit Court of Appeals affirmed the NLRB’s decision. The Court spilled much ink on the appropriate deference to be afforded to a governmental entity like the NLRB, before going through an analysis of whether the employee’s click of the “like” button was protected and concerted (it held “yes”) and then whether the employee otherwise acted in such a disloyal manner to lose the protections under federal law (it held “no”). Implicit there is that the decision really assumed that merely “liking” something was an activity or speech that has sufficient substance to be protected in the first place.

The next step in this case, at least procedurally, is for both sides to argue whether this “summary order” by the 2d Circuit should be published as an actual order with precedential value (Note: according to 2d Circuit rule, “rulings by Summary Order do not have precedential value). But that’s like saying “don’t clean up the toothpaste that’s already out of the tube,” or “don’t go get that horse that’s out of the barn,” or, well, you get it.  The 2d Circuit has spoken on this issue, and is the first appellate court to do so. Whether you like it or not.

Employer Take Away:   What should you as an employer take away from this development?   

So what’s next? A lawsuit over an employer firing an employee because it didn’t like a chosen emoji?  I don’t know. What I do know is that your company still needs to carefully engage in the appropriate analysis when deciding whether to take adverse action against an employee for doing something – anything? – on social media. It’s not just what the employees expressly say, it may also be what they click.

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WTF?!

WTF already?! As in, “where’s the fairness?” Time for an acronym update from our favorite government acronym, the NLRB.

You will certainly remember that we have recommended asking yourself three questions before determining whether the NLRB would have a problem with you disciplining one or more employees: First, did the employees engage in “concerted” activity? Second, if yes, was that concerted activity “protected” under the National Labor Relations Act? And third, if yes to the first two questions, did the otherwise protected concerted activity lose its protection under the Act because it was so offensive or reckless? 

The vast majority of the NLRB’s decisions and guidance have focused on the first two questions. However, we are now starting to see the NLRB beginning to shape its position on the third question, and the parameters within which otherwise protected activity may still keep employees from success under the Act.

Which brings us to the Board’s latest decision in In re Pac Bell Tel. Co., where telephone technicians wore buttons and stickers that contained the phrases “WTF Where’s the Fairness,” “FTW Fight to Win,” and “Cut the Crap! Not My Healthcare.” The union argued that they had the right under the Act to wear such union insignia, while the employer contended that any such right was lost because the messages were vulgar and offensive.

The NLRB sided with the employees.  It found that acronyms such as “WTF” and “FTW” did not stand alone, but were followed immediately by non-vulgar phrases that gave relatively innocuous meaning to the acronyms:

“We find that the possible suggestion of profanity, or ‘double entendre,’ . . . is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product[.]”

“Cut the Crap,” or, as I often like to refer to it, “CTC,” was also deemed protected under the Act because the NLRB felt that “crap” had no “scatological content.”

WTF?

Employer Take Away:   What should you as an employer take away from this development?

Whether the speech is through social media, or on t-shirts, hats, or buttons, your company must still toe the line between permissible discipline and allowing speech that you might not generally like. As we’ve said in the past, there is going to be a high threshold before the NLRB will determine that protected concerted activity has lost its protection under the Act. Pac Bell teaches us that double entendre with a mere “suggestion of profanity” may not be enough, and that there will likely need to be a very clear (and sole) offensive statement expressly made.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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