The National Labor Relations Board recently dismissed a charge brought by an employee who was fired for a post on LinkedIn. In 2010, a supervisor from the employee’s department invited the employee to join LinkedIn. The invitation identified the company and asked the employee for his job title. Thinking only his supervisor would see his response, the employee “jokingly” wrote that his position was, “f**ktard.” (By the way, I added the asterisks – the employee used the real word.)
About a year later, when the company was working on its own LinkedIn page, it discovered the “f**ktard” post. Not surprisingly, the “joke” fell flat, and the employee was fired. The company informed him that the post violated the company’s electronic communication policy which “forbids material that is ‘obscene defamatory, harassing or abusive.’”
Complicating the situation, however, was the fact that a couple of months before his termination, the employee had discussed with coworkers their opinion that the company’s overtime policy was unlawful. (Is this setting off any red flags – it should!)
After the employee was fired, he brought a unfair labor practices charge against the company, claiming he was fired because of his discussions about the company’s overtime policy and that these discussions were protected concerted activity.
The NLRB, however, disagreed and dismissed the charge. In this case the employee had not offered any evidence that the company even knew about his overtime complaints. A company can’t terminate someone for engaging in protected concerted activity if the company doesn’t even know the protected activity occurred.
Aside from the employee’s strikingly poor taste in jokes (and apparent lack of tech savvyness – thinking only his supervisor would see the post!), I was struck by the fact that had the facts of this case been slightly different, the NLRB may have made a different decision. What if the employee had posted, not that he was employed as a “f**ktard,” but that his supervisor was a “f**ktard”? What if some of his coworkers posted comments agreeing with him, and they were motivated to make these comments because they were upset over the overtime issue?
