September 24, 2020

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Second Circuit “Likes” NLRB Decision on Facebook Activity

On October 21, 2015, the US Court of Appeals for the Second Circuit upheld the National Labor Relations Board’s (NLRB) ruling that a Facebook “like” can be protected concerted activity under the National Labor Relations Act (NLRA)— Triple Play v. Sazone and Triple Play v. Spinella.

In short, the recent judicial endorsement of the NLRB decision reinforces that not only written social media activity can be protected, a simple Facebook “like” may be as well—in this particular case, the protected act was the “liking” of a negative post related to employer tax withholdings and the alleged failure to pay a former employee’s wages.  Because the post/conversation at issue was work-related, an employee’s support/“like” of the post was found to be protected.  The Court did note that there are limits to the NLRA’s protections, including instances in which a post or comment is both defamatory and maliciously untrue—no doubt we will be seeing cases delving into this issue in the coming years.

In the meantime, an employer should think twice before terminating an employee for a Jerry Maguire-worthy post decrying the conditions of the workplace—or “liking” something similar.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume V, Number 302

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About this Author

Anne Marie Schloemer, Employment Attorney, Squire Patton Boggs Law Firm
Associate

Anne Marie Schloemer (Prack) researches and analyzes legal sources for drafting memorandum, pleadings and position statements related to employment law. She also drafts discovery requests and responses, and prepares for depositions and litigation.

In addition, Anne Marie participates in all aspects of workers’ compensation administrative hearings including the preparation of client defenses to employees’ claims and medical histories and summaries.

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