Firing over Facebook "Likes" Could Violate the NLRA
In an unpublished order last week, a panel of the Second Circuit affirmed a decision by the National Labor Relations Board (NLRB) finding that an employer violated the National Labor Relations Act (NLRA) when it discharged two employees for responding, one with a comment and one with a "Like," to a former employee's negative Facebook post about the employer's tax withholding practices. One of the current employees referred to the employer as an "asshole" and the other posted a Facebook "Like." See Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board , Nos. 1403284; 14-3814(XAP), (2d Cir. Oct. 21, 2015) (unpublished). Finding that the non-unionized employees were engaging in concerted activity, the panel rejected the employer's argument that the postings were not protected due to the use of profanity, and noted that such a holding, in light of the nature of social media, "could lead to the undesir...