Court of Appeals Gives Protection to Employee “Like” of Negative Comments

November 10, 2015

A recent decision by the Second Circuit Court of Appeals has upheld the decision by the National Labor Relations Board that action taken by two employees on a Facebook page should be considered protected speech and therefore the employees should not have been terminated from employment. 

In this decision involving the Triple Play Sports Bar and Grille, the NLRB sought reinstatement of two employees who clicked “Like” on a post on Facebook that was critical of the bar owners and also posted a comment in favor of an ex-employee’s Facebook comment about the owners.  The NLRB ruled that the action taken by these employees should be considered protected speech and therefore they should not have been terminated from employment because of their actions.  The Court of Appeals upheld the NLRB decision but decided not to publish its decision which sends a message that the decision is very much limited to the actual facts of the case.

It is important, however, for employers to realize that many types of different activities of employees could be construed as protected speech if it relates to workplace conditions or is a commentary about the actions of any employer.  It is hard to imagine that the act of “Liking” a post on Facebook rises to a level of protected speech but that is the ruling from the Court of Appeals.  Employers must be very careful when making decisions about the employment of an individual employee who has made comments about the company or its business operations.

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