An employee’s selection of the “Like” option under a former employee’s initial Facebook status update was “an expression of approval” of the initial status update it followed (and therefore part of concerted activity), but not of the entire topic of which the update was part as it existed at the time. Therefore, the NLRB determined, the employee could not be held responsible or fired for any of the other comments posted in the exchange, including allegedly disparaging or defamatory comments. Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014).
The decision addresses several important issues related to social media activity and protected concerted activity (or its absence) under the NLRA.
The employer employed Jillian Sanzone and Vincent Spinella. Sanzone and at least one other employee discovered they owed more in state income taxes on their earnings than they had expected. Sanzone discussed this at work with other employees, and some employees complained to the employer.
Under Section 7 of the National Labor Relations Act, employees have a statutory right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees,” including by using social media to communicate with each other and with the public for that purpose.
Sanzone, Spinella, and a former employee, Jamie LaFrance, had Facebook accounts. LaFrance posted the following “status update” to her Facebook page:
Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money… [Expletive deleted]!!!!
LaFrance later posted:
It’s all Ralph’s [the Employer’s co-owner who was responsible for the Employer’s accounting] fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.
At this point, Spinella selected the “Like” option under LaFrance’s initial status update. The discussion continued with several comments, including this one by LaFrance about “Ralph”:
Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there.
Sanzone then wrote: I owe too. Such an [expletive deleted].
In analyzing whether Spinella could be held responsible for the comments of others in the Facebook string based on his use of the “Like” option, the NLRB interpreted Spinella’s use of that option “as an expression of approval” and, it appears, “participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity.” However, the Board rejected the employer’s argument that, as a result of his use of the “Like” option, Spinella could be held responsible for LaFrance’s “shady little man” and “pocketed it all” comments in the string about “Ralph,” as well as Sanzone’s use of profanity to describe him. The Board held that Spinella’s “Like” pertained only to the specific comment it followed (“It’s all Ralph’s fault”) and not to the entire discussion. The Board wrote:
We interpret Spinella’s “Like” solely as “an expression of approval” of the initial status update. Had Spinella wished to express approval of any of the additional comments emanating from the initial status update, he could have “liked” them individually.
The Board, therefore, found that, even if the “shady little man” and “pocketed it all” comments about “Ralph,” as well as Sanzone’s use of profanity to describe him were unprotected, Spinella’s use of the “Like” option during the discussion did not attribute those particular comments to him and he could not be terminated because of them.
This is the first NLRB decision deciding what the meaning and implications are under Section 7 of an employee’s use of the “Like” option.
We will write separately about the other important issues the decision addresses.