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.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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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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