In late April of 2012, the United States District Court for the
Eastern District of Virginia ruled on a case involving claims of
retaliation brought by two former deputies against the Sheriff of the
City of Hampton, Va. (the Bland v. Roberts opinion can be found here).
The deputies alleged that their First Amendment rights were violated
and they were unlawfully retaliated against when they were terminated
for supporting the Sheriff’s opponent in a recent election. Each former
deputy claimed to have made protected “statements” on the opponent’s
Facebook page.
Upon examination of the record, the court concluded that the only
evidence of support for the opponent’s candidacy from the deputies was
the “liking” of his Facebook page. The court specifically held: “Simply
liking a Facebook page is insufficient. It is not the kind of
substantive statement that has previously warranted constitutional
protection. The Court will not attempt to infer the actual content of
[the deputy’s] posts from one click of a button on [the opponent’s]
Facebook page.”
The facts of this ruling do not translate directly to the private
sector, as those employees, unlike their public sector counterparts, do
not have a First Amendment freedom of speech right vis-à-vis their
employer. The ruling, however, does raise a significant issue regarding
enforcement of Section 7 of the National Labor Relations Act (NLRA) and
the rights of private sector employees to engage in concerted activity
and to discuss rates of pay, hours and working conditions. To date, the
National Labor Relations Board (NLRB) seems to determine whether
Facebook postings constitute protected concerted activity based upon
some involvement of coworkers who respond to the postings. See
Employment: New NLRB Report on Social Media Limits.
The fundamental issue is whether “liking” a Facebook page or
particular post would constitute a sufficient response to trigger
protection in the view of the NLRB. The Bland v. Roberts
decision appears to discount the weight of a simple “like,” but that
ruling was not in the context of an NLRA matter. It’s certainly possible
the NLRB would conclude differently, or perhaps it would depend on the
specific post and the number of “likes” it received. For now, employers
viewing employee Facebook posts are advised to pay attention, not only
to the posts and any substantive responses, but also to the number of
“likes”.
By Ethan L. Don, Employment Lawyer.
First Published: The Law Firm of Paley Rothman Blog
