Category Archives: Social Media

Facebook Comments and “Likes“ Protected Activity?

Social Media keyboard

Is commenting on a Facebook post protected, concerted activity under the National Labor Relations Act?  What about hitting the “Like” button on a post?  The Second Circuit recently agreed with the National Labor Relations Board that they are.

In a decision last year, the Board ruled that a sports bar had unlawfully terminated two employees for their activity on Facebook.  The first employee had commented on a status update of a co-worker stating that the bar’s owners “couldn’t even do the tax paperwork correctly” and that someone should do the owners “a favor” and purchase the business from them.  The employee’s comment stated that she “owed too,” and referred to one of the owners as an “asshole.”  The second employee “liked” the first employee’s status update.  The Board held that both employees’ had engaged in protected, concerted activity under the Act, and that the bar had violated the Act when it terminated their employment.

Last month, the Second Circuit (Connecticut, New York, and Vermont) affirmed the Board’s decision.  The court held that the employees’ actions amounted to a group of employees discussing labor issues and were protected by the Act.  The bar argued that the Facebook comment and “like” were meant to defame the bar – with the use of profanity – and thus brought it outside the protections of the Act.  However, the court reasoned that the Facebook activity at issue was different from obscenities voiced by employees in earshot of customers in a crowded shop (even though customers could view the comments on Facebook).  The court also noted that the bar’s internet and blogging policy could be read as prohibiting employees from protected activity under the Act.

The take-away here?  It’s a good time for employers to review their social media policies.  As we have warned in the past, these policies as written and as enforced must not “chill” employees from engaging in protected, concerted activity.  There is often a fine-line between lawfully prohibiting certain types of activities on the internet and unlawfully interfering with employees’ protected activity.  It’s a good idea to check with counsel on how to best craft the wording of these policies to protect the employer’s interests while not interfering with employees’ rights.

Employment Law Update: A Look Back and a Look Ahead

This year, LP’s Labor & Employment attorneys tried something different with our annual “Employment Law Update” and hosted the program as a webinar. The new format allowed us to record this year’s program and make it available for all our blog friends, colleagues and clients who were unable to participate.  LP labor and employment attorneys Peter DonatiLaura Friedel and Kenneth Kneubuhler highlighted recent updates in labor and employment law and tips to keep your workplace practices current.

You can find the recording here and the presentation materials here.

To give you an idea of what topics are covered in this year’s “Employment Law Update” here are the topics we discussed:

•The impact of recent Supreme Court decisions on supervisor liability and the burden of proof for retaliation claims

• Trends involving arbitration agreements: Will they prevent class claims?  Should your business be using them?

• Same sex marriage: How it affects employee rights under the FMLA and benefit plans

• Recent Illinois cases involving non-compete agreements.  Will your agreements be enforceable when you need them?

• New developments at the National Labor Relations Board that affect both union and non-union workplaces

• How to properly use background checks to avoid scrutiny by the EEOC and avoid violating state laws

• Current wage and hour issues, including developments involving interns and independent contractors

• Other important state law trends, including laws on concealed weapons, medical marijuana, and social media passwords