The first such case to make its way to the federal courts is now pending at the Second Circuit and oral argument was held this week. The case is Three D, LLC v. National Labor Relations Board, Case No. 14-3284, and involves “Triple Play Sports Bar and Grille.” The restaurant fired a bartender over a Facebook post calling her employer an “asshole.” The posting was “Liked” by another worker which made the comment “concerted” according to the NLRB. The employer argued that the posting was capable of being viewed by customers and constituted “disloyal” or “defamatory” speech outside the law’s protections. The NLRB argued that the comment was not sufficiently inflammatory and that employees have the right to heated and even profane expressions of discontent about their working conditions.
This case is an important one to watch because it is a test case for the NLRB’s aggressive litigation stance on protection for employee social media posts. It will also be one of the first appeals court rulings on the question of whether a “like” on Facebook equates to a concerted action by multiple employees. A decision is expected late 2015 or early 2016.