THE HUNTING OF THE FACEBOOK “LIKE” BEWARE THE CONCERTED-ACTIVITY BOOJUM
“For, although common Snarks do no manner of harm, Yet, I feel it my duty to say, Some are Boojums –.” So goes the warning in Lewis Carroll’s 1876 poem The Hunting of the Snark. In the poem, a hunting party pursues the harmless Snark but is warned along the way that some Snarks are actually highly dangerous Boojums. If one meets a Boojum, he will “never be met with again!” At the conclusion of the story, one member of the crew believes he has found a Snark and calls out to his friends – but when they arrive, they find that he has vanished without a trace, “For the Snark was a Boojum, you see.”
Just as the doomed hunter’s fate was sealed by a dangerous animal he mistook to be harmless, in the wake of the Second Circuit’s order in Three D LLC d/b/a Triple Play Sports Bar & Grille v. NLRB, employers may soon find themselves surprised by the concerted-activity teeth of seemingly innocuous Facebook “likes.” As a quick refresher, the National Labor Relations Board (“Board”) in recent years has steadily marched toward applying Section 7 of the National Labor Relations Act, governing protected concerted activity, to social media. Although the Board has protected postings and comments as concerted activity, it had not (until recently) addressed the trifling “like.”
In Triple Play, two employees of a restaurant found out that they owed more than expected in state income taxes and complained to management. The discussion spilled onto Facebook, where an ex-coworker accused the owner of miscalculating taxes. One employee “liked” the ex-coworker’s post, while the other posted his own comment calling the owner an “a**hole.” Triple Play fired both employees. Although the owner did not expressly cite the restaurant’s policies, the employee handbook contained an “Internet/Blogging Policy” which, among other things, prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers.”
Triple Play did not dispute that the ex-coworker’s original post regarding management’s handling of tax paperwork was protected by the NLRA. The Board and Second Circuit agreed, however, that the first employee’s “liking” of that Facebook post constituted concerted protected activity and that terminating her violated Section 8(a)(1) of the NLRA. With regard to the second employee (who called the owner an unsavory name), the Second Circuit was not swayed by Triple Play’s argument on appeal that the posting was removed from NLRA protection because it was defamatory and contained obscenities which could be viewed by customers. In fact, the court specifically noted that “[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers” and the logical end of Triple Play’s rationale “could lead to the undesirable result of chilling virtually all employee speech online.”
In addition, the court upheld the Board’s opinion striking down Triple Play’s “Internet/Blogging Policy” as overbroad because “employees could reasonably construe the language to prohibit Section 7 activity.” In the end, the court determined that the Board’s decision “accords with the reality of modern-day social media use.”
The Second Circuit’s decision was delivered via summary order, which technically carries no precedential weight. Nevertheless, employers should find some cautionary takeaways from Triple Play – not the least of which is that the Board and the courts continue their march toward expanding protections for employees who communicate online about work. Although Triple Play dealt specifically with discipline or termination for activity on Facebook, its principles can be extrapolated to other social media websites which include a “heart,” “like,” “thumbs up” or other similar function, such as Twitter or Instagram. Additionally, employers should review their social media policies to ensure that they do not infringe on concerted activity protected by Section 7 of the NLRA.
As always, employers should take care to consult competent labor and employment counsel if they are unsure of the current state of this constantly changing area of the law. If you thought you were facing a harmless social media Snark and it turns out to be a dangerous concerted-activity Boojum, like the doomed hunter in the poem, it may be too late.