The Law and Business of Social Media
November 23, 2015 - Protected Speech, Employment Law

The Second Circuit Tackles Employee Rights, Obscenities & Social Media Use

The Second Circuit Tackles Employee Rights, Obscenities & Social Media Use

Employers took note last year when the National Labor Relations Board (NLRB) ruled that “liking” a Facebook post can qualify as protected activity under the National Labor Relations Act (NLRA). The NLRB held that the owner of a sports bar violated Section 7 of the NLRA by firing employees for a protected Facebook discussion criticizing the owner’s tax-withholding practices. An employee who referred to the owner as an “asshole” and another employee who merely “liked” the Facebook discussion were both engaged in protected activity, according to the NLRB.

Now the Second Circuit has affirmed the NLRB’s ruling. The Court rejected the argument that the employees’ Facebook discussion was unprotected because it amounted to uttering obscenities in the presence of customers. Accepting such an argument, wrote the Court, “could lead to the undesirable result of chilling virtually all employee speech online.”

The Court noted that almost all Facebook posts have the potential to be viewed by customers, but in this case the discussion was protected because it was not directed at customers and did not reflect the employer’s brand.

In addition, the employees’ Facebook activity did not lose protection simply because it contained obscenities viewed by customers, as such protection “accords with reality of modern-day social media use.”

The Second Circuit’s decision signals significant protection of employees’ social media communications, including a Facebook “like.” However, the Court refused to publish its summary order, despite urging from the NLRB, so the decision has no precedential effect.

Nonetheless, the takeaway is clear: “Like” it or not, employers should proceed with caution when considering whether to take action against employees for social media postings, even where obscenities are involved. Such is the reality of modern-day online speech.