Does Facebook Activity Constitute Protected Concerted Activity Under the NLRA?

It does, according to the United States Court of Appeals for the Second Circuit.  In Triple Play Sports Bar and Grill v. NLRB, the Second Circuit upheld a ruling of the National Labor Relations Board (the "NLRB") that Facebook activity by employees, which was critical of the company, constituted protected concerted activity under Section 7 of the National Labor Relations Act (the "NLRA").  The Summary Order issued by the Second Circuit (which lacks precedential effect) can be found here.

Triple Play is a sports bar located in Connecticut.  One of its employees had made a post on Facebook that was critical of the employer. The post concerned claimed mismanagement of payroll tax by the employer; as a result, employees would owe additional taxes which should have been deducted in the first place.  The post stated as follows: "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!!!!."  A fellow employee "liked" the post on Facebook and commented "I owe too. Such an asshole." When the employer became aware of this, it fired the two employees.

The Second Circuit upheld the NLRB ruling that the two employees were engaged in a work-related discussion that was protected by the NLRA.  It makes for interesting reading, particularly the discussion concerning the issue of whether the Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA; the Second Circuit held that the protection was not lost in this instance.