Privacy and security: A simple computer click may be protected activity
Posted September 7, 2016
By Katie Loehrke, PHR, editor, J. J. Keller & Associates, Inc.
These days, when an employee posts a work-related comment to Facebook, you can almost hear the jumble of thoughts and concerns in the brains of company managers and executives. Among the questions that may come to mind are:
- Was the employee posting when he or she should have been working?
- How does the employee’s behavior interact with company policies?
- How clear are the company’s policies regarding online activity?
- Has the employee engaged in protected concerted activity under the National Labor Relations Act (NLRA)?
- How did the employer become aware of the post?
- Does the employer have “freely given access” to the post under the Stored Communications Act?
- Is the post stored on a server belonging to the employer?
- Do the employee’s online activities affect the workplace?
Implications for public employers
As if that list doesn’t provide enough for employers to consider, there’s yet another question that public employers may want to add: Is the employee’s online activity protected expression under the First Amendment?
In a 2013 Fourth Circuit case, the court held that an employee’s “like” on Facebook was, in fact, protected under the First Amendment. The employee in this case used Facebook’s “like” button to express support for his boss’ opponent in an upcoming election for city sheriff. After the employee was allegedly terminated for expressing his penchant for the other candidate, he sued. The district court held that a Facebook “like” was not protected under the First Amendment.
However, on appeal, the Fourth Circuit reversed the lower court’s decision, noting that clicking “like” on Facebook “causes to be published the statement the user ‘likes’ something, which is itself a substantive statement.” (Bland v. Roberts)
Implications for private employers
While employees in private companies don’t have First Amendment rights in the workplace (employees can say what they like, but in many situations, the employer may discipline or terminate the individual for speaking freely), this case does send the message that even a simple Facebook “like” is a significant action, conveying an employee’s opinion.
The National Labor Relations Board has agreed with the position that a “like” can be significant. In a recent case, an employee was terminated after “liking” another employee’s NLRA-protected post. The Board ruled that the first employee’s “like” “expressed his support” for shared workplace concerns, and that both the “like” and the written post were protected concerted activity under the NLRA. (Three D, LLC d/b/a Triple Play Sports Bar and Grille v. Jillian Sanzone)
The key to remember is this: An online expression of support as simple as an employee clicking “like” could be the expression of First Amendment rights (for public employees) or could constitute protected activity under the NLRA (for private employees).
About the author:
Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr.