Last Friday, the National Labor Relations Board (“NLRB”) ruled that two employees of a sports bar and restaurant were unlawfully discharged for their participation in a Facebook discussion criticizing their employer.  In the Facebook discussion that prompted the firings, a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer.  The employee commented on the status, “I owe too.  Such an asshole,” and was discharged.  A second employee, who “liked” the former employee’s status, was discharged as well.

Section 7 of the National Labor Relations Act provides, in relevant part, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  At issue in this case was not whether the employees’ Facebook activity was “concerted” or whether the employees had a statutorily protected right to engage in a Facebook discussion about the employer’s tax-withholding practices.  Rather, the case centered on whether, as a result of their actions on Facebook, the two employees adopted the allegedly defamatory and disparaging statements contained in the former employee’s Facebook status and therefore lost the protection of the Act.
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