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Employment Blog

Using "Like" on Facebook may be Protected Speech

Authored by Dean R. Dietrich
Posted on September 5, 2014
Filed under Employment

A recent decision from the National Labor Relations Board (August 25, 2014) held that an employee using the "Like" feature on a Facebook page to show support for comments by another employee about the conduct of the company payroll system constituted protected speech under the National Labor Relations Act. The Board held that the termination of the employee for actions taken on the Facebook page was an unlawful termination and contrary to the right of the employee to engage in protected speech about working conditions at the employee's workplace. This is one of the first decisions regarding social media but seems consistent with past NLRB decisions that gave great deference to employee speech.

In this decision, two employees were terminated for the actions they took to "Like" a comment by a former employee who complained about the tax-withholding calculations made by the company. The Board found that these expressions by the two employees should be considered protected speech and they were unlawfully terminated for exercising their right to protected speech. The Board also found that the policy of the company which prohibited inappropriate discussions about the company, management or other workers as part of the "Internet/Blogging" policy was unlawful and inappropriately restricted the protected speech of company employees. These decisions are Three D LLC d/b/a Triple Play Sports Bar and Grille v. Sanzone, case number 34-CA-12915; and Three D LLC d/b/a Triple Play Sports Bar and Grille v. Spinella, case number 34-CA-12926.

Employers must be very careful about the use of "off duty" conduct as a basis for terminating an individual employee. Companies should be able to protect their reputation and prohibit employees from making derogatory statements about the company on Internet communications but this right is subject to significant review and challenge by the National Labor Relations Board. Caution is the appropriate word when considering terminating an employee for their words on the Internet or Facebook.