Decision: In Richmond District Neighborhood Center, an NLRB judge ruled that a community center (“Center”)’s discharge of two youth programming employees over a profane Facebook conversation about working conditions did not violate the National Labor Relations Act (“NLRA”). The employees engaged in the Facebook exchange in August 2012, shortly after the Center offered to rehire them for the upcoming school year. In the exchange, the employees claimed that they would take students on “[f]ield trips all the time to wherever the **** we want” and that the program could just “figure out the money.” The judge found the posts were a continuation of protected complaints about working conditions made in a May 2012 staff meeting. A supervisor at the Center, who was Facebook friends with one of the employees, alerted the Center to the August posts. The Center then rescinded its re-hire offers to the two employees. Finding that the Center did not run afoul of the NLRA, the judge held that, the employees’ activity was concerted, but it was not “protected” under the NLRA because the Center had a legitimate concern that the Facebook comments could “jeopardize the program’s funding and the safety of the youth it serves.” This took the Facebook comments outside the protection of the NLRA and justified the Center’s decision to terminate.

Impact: This case demonstrates that not all Facebook complaints about working conditions are protected activity. In the era before Facebook, the NLRB had recognized that some employee concerted activity could be “so egregious as to take it outside the protection of the Act, or …to render the employee unfit for further service.” The Richmond case is the first to show how employees may exceed the protection of the Act on Facebook. While the NLRB will no doubt interpret this standard narrowly, employers should consider raising the defense when the employee’s online conduct poses a legitimate, significant threat to their business. It is important to remember, however, that the employer might have faced other challenges if it surreptitiously accessed the Facebook accounts or demanded that the employees provide access to their accounts. An increasing number of states have enacted legislation prohibiting such demands, and plaintiffs are using other statutes, such as the Stored Communications Act, to challenge employers’ attempts to access private electronic communications of their employees.