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Social Media Update: Recent Developments from the Land of Facebook…, by John R. Martin, Rhoads & Sinon LLP


I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has come down hard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….