After 5 years of decisions criticizing discipline of employees who “speak out” about their employer on Facebook, the NLRB (finally) seems to be recognizing that there are limits to the concept of employee protected activity on social media.
In Richmond District Neighborhood Center, 361 N.L.R.B. No. 74 (Oct. 28, 2014), the NLRB considered a Facebook exchange between two employees working at an after-school program at a California high school. The employees engaged in a discussion about work that was riddled with profanity and included comments like: “I’ll be back…ordering sh-t, having crazy events…I don’t want to ask permission,” “field trips all the time to wherever the f--k we want!,” “Let’s f--k it up,” and “teach the kids how to graffiti up the walls.” The employees made it clear they intended to ignore school rules, “take advantage” of their new supervisor, and neglect their job duties.
Another employee of the after-school program took screen shots of the conversation and sent it to management. Based on the Facebook posts, the program then rescinded offers extended to the two offending employees for the following school year. The employees filed an NLRB charge alleging their Facebook statements were protected by law.
The NLRB disagreed, finding the Facebook exchange to be “objectively so egregious as to lose the [National Labor Relations] Act’s protection and render the [employees] unfit for further service.” Specifically, the Board noted that the Facebook comments, which contained numerous detailed statements advocating insubordination, went beyond mere jokes and hyperbole. The Board held that in light of the magnitude and detail of insubordinate acts advocated, the employer was reasonable in being concerned that the employees would act on their plans and had no obligation to wait until the employees committed such acts before taking disciplinary action.
While the NLRB’s holding confirms that not all Facebook comments are protected, employers should be careful when disciplining employees based on social media activity.