Workers are increasingly using social networking sites, like Facebook, to air job-related concerns. Are their posts, tweets, and Facebook “likes” protected under the National Labor Relations Act or the First Amendment?

The National Labor Relations Board, the administrative agency that adjudicates disputes arising under the NLRA, has increasingly had to confront this question. Section 7, the heart of the statute, protects employee “concerted activity.” But the founders of the Act, which was enacted in 1935, could not have anticipated a world in which a significant amount of communication takes place online.

The Board has heard a number of cases considering employee online activity in recent years. Workers are repeatedly raising two issues (often in the same case): 1) whether the employer’s rules or policies governing employee conduct online violates Section 7; and 2) whether the employer can fire an employee for her online activity. The Board’s analysis is usually quite fact-specific (but see this law review note that identifies trends in the Boards’ rulings). The Board uses the same tests that it developed to assess more traditional forms of employee concerted activity, like face-to-face conversations, walkouts, and meetings with management, to evaluate worker online conduct.

When evaluating a workplace online policy, the Board asks whether reasonable workers would interpret the rule to prohibit Section 7-protected activity. And when assessing the legality of a firing, the Board balances the employee’s right to engage in Section 7 protected activity against the employer’s interest in protecting its reputation.

The most recent controversy involves “liking” posts or pages on Facebook. In Vincent Spinella v. Triple Play Sports Bar and Grill, Triple Play employee Jamie LaFrance, who left her job prior to the NLRB litigation, discovered that she owed more in state income taxes than she expected. She posted the following status update to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” Her co-worker, Vincent Spinella, “liked” LaFrance’s comment.

Spinella’s employer fired him when he returned to work, stating that his Facebook “like” demonstrated that Spinella wanted to work for another company. The Board found that Spinella’s discharge violated the NLRA: Spinalla and LaFrance’s conduct was “concerted” because they were continuing an earlier discussion about an issue related to their employment. Further, the employees planned to raise their tax concerns with management and file a complaint with the Labor Board. The Board also found that Triple Play’s policy prohibiting “inappropriate discussions about the company, management, and/or co-workers” online was overbroad.

Public employees have argued that the First Amendment, rather than the NLRA, protects their online activity. The U.S. Court of Appeals in Virginia recently agreed. In Bland v. Roberts, former employees of a sheriff alleged that they lost their jobs after they “liked” the Facebook page of the sheriff’s opponent. U.S. Circuit Judge William Traxley wrote, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement…That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

Both rulings have generated significant commentary. Reacting to the NLRB case, labor attorney Brian Rauch said, “I believe there should be a difference between three individuals talking around the water cooler and communicating thoughts to potentially millions of followers in a medium that does have a permanent nature and a very easily shareable nature.” Worker advocates agree that online communication is substantively different than face-to-face concerted activity, but applaud rulings that acknowledge sites like Facebook as a “latter day public square.”