On August 22, 2014, the National Labor Relations Board (NLRB or the Board) issued a much-anticipated ruling with respect to social media in the workplace. In a case involving the termination of two employees for their participation in a Facebook discussion about claims that employees unexpectedly owed additional State income taxes because of the employer's withholding mistakes, the Board ruled that clicking the "Like" button on Facebook was protected, concerted activity shielded by the National Labor Relations Act (NLRA or the Act). Specifically, although the Board recognized that a "like" may be ambiguous, it takes the position that such conduct expresses agreement with the subject of the target posting and therefore can be considered protected, concerted activity. The "like" does not, however, reach subsequent comments unless each comment is individually "liked" as well.
The NLRB not only found the terminations unlawful, but went a step further and reviewed the employer's "Internet/blogging" policy. The policy prohibited "inappropriate discussions" about the company, management or other workers. The administrative law judge found that the policy was not overbroad and did not inappropriately interfere with employee rights under the NLRA. The Board, reversing the administrative law judge, found the policy to be overbroad because it had a tendency to "chill" employees in the exercise of their protected rights.
This decision reaffirms the NLRB's treatment of social media in the workplace as a "virtual water cooler" and should be another reminder for employers that the Board has significant tolerance for employees who engage in potentially damaging conduct under the guise of protected activity. While business groups are not surprised by the Board's ruling as it adopts a 2012 administrative law judge's decision, this decision highlights that employers, regardless of whether their employees are represented by a union, must be mindful of the NLRA when crafting social media policies. Social media is a present, pervasive and complex issue in the workplace, and employers must walk a fine line between protecting company image online while maintaining compliance with the NLRA.