Decision: The National Labor Relations Board (NLRB) recently upheld an administrative law judge’s ruling that a youth center permissibly fired two of its employees for an exchange they had on Facebook. According to the NLRB, the exchange “contain[ed] numerous statements advocating insubordination” such that the exchange, even though it was concerted activity, lost the protections of the National Labor Relations Act (NLRA). In Richmond District Neighborhood Center, two youth center employees engaged in a Facebook conversation in which they said they would refuse to obtain permission as required by the employer’s policies before organizing youth activities, disregard specific school district rules, undermine the center’s leadership, neglect their duties and jeopardize the future of the center. The NLRB determined that “the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection” and rendered the two employees unfit for further service.
Impact: This is the first NLRB decision to analyze how concerted activity on social media can lose its protection under the NLRA because it is “objectively egregious.” Although the exception created by the NLRB in this case is relatively narrow—the NLRB found particular significance in the Facebook posts’ “numerous detailed descriptions of insubordinate acts”—employers should consider whether this defense applies when they are faced with a situation in which employees’ social media comments advocate violating the employers’ policies or neglecting their duties.