It appears now, however, that the Board is still rehearsing its script: last month, the Board issued its decision in Purple Communications, 361 NLRB No. 43, (Sept. 24, 2014), and explained that it would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.” As a result, the Board’s decision did not reach the merits of whether Register Guard should be overturned. This means that policies prohibiting any non-business use of an employer’s email system will most likely continue to be lawful—at least in the near term.
In another recent development, the Board held for the first time that merely “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA. Among the issues In Three D, LLC, 361 NLRB No. 31 (Aug. 22, 2014), was whether a bar unlawfully terminated several employees after discovering their discussions on Facebook. The employees had learned that they owed additional taxes as a result of an accounting error by their employer and had taken to Facebook to vent their frustrations. One of the employees did not offer any written comments, but did “like” another employee’s post. The Board found that the comments—including the mere “liking” of another post—qualified as protected concerted activity because they concerned a group discussion of workplace complaints. It was therefore unlawful for the bar to terminate the employees for their participation in the exchange.
The Board’s conclusion that “liking” a social media post may qualify as protected activity is not altogether surprising. Other courts, for example, have found that “liking” a post qualifies as speech protected by the First Amendment, reasoning that “liking” a comment is just as much a substantive statement as the comment itself. It is perhaps no surprise, then, that the Board’s decision appears to “like” the same logic.