• NLRB Finds Certain Facebook Posts Unprotected - Finally!
  • December 8, 2014 | Author: Fiona W. Ong
  • Law Firm: Shawe & Rosenthal LLP - Baltimore Office
  • Once upon a time, the National Labor Relations Board actually found Facebook posts by employees to be unprotected by the National Labor Relations Act... A fairy tale for employers, you say? No really, it actually happened, in the case of Richmond District Neighborhood Center.

    Over the past several years, it seems that the Board will find almost any kind of employee speech - especially in social media - to be protected by the Act. Under past Board rulings, employees can seemingly say the most outrageously derogatory things about co-workers and management and drop four-letter words all over the place - all without consequence. So it’s nice to know that even the Board thinks that there are lines that cannot be crossed.

    In this case, two unhappy employees of an afterschool program had a Facebook conversation about their employment. This is considered concerted activity that is therefore protected by the Act. So when another employee took a screenshot of the conversation to the employer, and the employer decided not to rehire the employees for the coming school year, one of the employees filed a charge with the Board claiming that his rights under the Act had been violated.

    Concerted activity, however, can lose the protection of the Act if its is sufficiently egregious or if it makes the employee unfit for further employment. That is what the Board determined happened here. Specifically, the Board found that the employees made statements that:

    • they would refuse to obtain required permission before organizing youth activities (“ordering s***, having crazy events at the [center] all the time. i don’t want to ask permission...”, “Let’s do some cool s***, and let them figure out the money”, “field trips all the time to wherever the f*** we want!”)
    • they would disregard specific school-district rules (“play music loud”, ‘teach the kids how to graffiti up the walls”)
    • they would undermine leadership (“we’ll take advantage”, “I would hate to be the person takin your old job”)
    • they would neglect their duties (“I AINT GOBE NEVER BE THERE”)
    • they would jeopardize the future of the youth center (“they start loosn kids i aint helpn”, “Let’s f*** it up”)

    [NOTE: all misspellings are original!]

    The Board stated: “We find the pervasive advocacy of insubordination in the Facebook post, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [the employees] unfit for further service.” The Board found that, given the “magnitude and detail” of the planned insubordinate acts, a reasonable employer would refuse to take the risk that such plans would be carried out if these individuals continued to be employed.

    So for once, the employer lived happily ever after. The End.