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When Facebook's 'Like' Pushes the Wrong Button with Employers

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When Facebooks Like Pushes the Wrong Button with Employers

As a transitive verb, Merriam-Webster describes "like" as "feeling attraction toward or taking pleasure in." To a 15-year-old girl, the word "like" is a filler used as often as three times in each spoken sentence. To most people, "like" is a lighthearted word, a happy word.

So at what point does clicking "Like" on a Facebook page result in a pair of federal complaints pitting employers against employees and raising fresh questions about the role of online speech? In recent weeks, two cases have come to light, each featuring employees clicking "Like" on Facebook and being fired for having done so.

In the first incident, a Library of Congress worker says he was fired when he "Liked" a Facebook Page of an organization advocating gay adoption of children. According to published reports, the 30-year-old library employee, who previously received only glowing work evaluations, said the library became a hostile work environment after his supervisor learned he was gay.

In a report published by DCist, a Washington, D.C., website, the employee said he became Facebook "friends" with the supervisor's daughter, and it was through that friendship that his boss discovered that he had "Liked" the Two Dads Facebook Page. After his subsequent firing, the employee filed a complaint with the federal Equal Employment Opportunity Commission. A ruling is expected later this month.

In the second incident (Bland v. Roberts), the Hampton, Va. sheriff fired six of his employees when he discovered they "Liked" the Facebook page of his political rival, a candidate for the sheriff's elected post. In that lawsuit, the U.S. District Court found in favor of the sheriff, saying the firings were legitimate because "Liking" someone on Facebook does not constitute free speech and is not protected under the First Amendment.

Should a "Like" be protected as freedom of speech? Damon E. Dunn, a partner in the law firm Funkhouser Vegosen Liebman and Dunn Ltd., says public employees can bring retaliation claims based on First Amendment rights because the government employs them. Maybe not when speaking on behalf of their employer as part of their job duties, but certainly when speaking as private citizens.

On the other hand, the National Labor Relations Act governs private employers, and the National Labor Relations Board has filed complaints charging employers with retaliating against workers engaged in concerted protected activities.

In the sheriff's department firings, the judge found that the "Like" button was too generic to constitute expressive speech. Had it qualified as speech, the judge still might not have had enough context to ascertain whether the workers expressed an opinion qualifying for protection, Dunn says.

The Library of Congress employee, Dunn says, might be able to show that the page he "liked" was sufficiently specific so that one can infer his opinion involved a matter of public concern.

In any event, private employers need to be sensitive to both the NLRA and privacy concerns by crafting social media policies that don't choke off protected and private speech and enforcing discipline evenhandedly.

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