Employers firing employees for the content of their social media posts continue to do so at their own risk. An NLRB decision from last week provides a good reminder of this important point.

An ambulance company, in two unrelated events, fired two employees for what they posted to Facebook. The first employee, in response to a post from a recently-terminated employee, told the employee that he was “sorry to hear” that she had been fired and that she “may think about getting a lawyer and taking [the employer] to court.” He also suggested that she could “contact the labor board too.” Others, including other employees, commented on the terminated employee’s post.

A few months later, the second employee posted a profanity-laden comment to his Facebook page about, among other things, being “broke down” and stating that “they don’t wanta buy new s***!!!!” The employee used all capital letters for emphasis in his post, but eschewed the asterisks I use in mine. Two people clicked “like” and two people commented, but there was no evidence about who these people were. The employer interpreted the post as an accusation that its ambulance was broken down and investigated its maintenance records. It found that the ambulance the employee was driving was not, in fact, broken down and terminated the employee for violating its social media policy.

The NLRB majority held that the first employee was unlawfully fired, but that the second employee was lawfully fired. Relying on its controversial decision in Fresh & Easy, the NLRB majority found that the first employee was engaged in protected, concerted activity because he was “making common cause” with the terminated employee and other employees privy to the conversation. Moreover, the Facebook conversation involved both employees and the first employee was encouraging the terminated employee to seek legal help, including contacting the NLRB.

As to the second employee, the NLRB majority found the conduct was not protected. Initially, it noted that the second employee didn’t testify in the ULP proceeding. Citing his unemployment compensation hearing testimony, however, the NLRB noted that the employee claimed the Facebook post related to his girlfriend’s car. This is not a matter of mutual concern for he and his co-workers. The NLRB majority further noted that, if the post was directed at the employer, it was not protected because it was maliciously false: the employer’s investigation confirmed that his ambulance was not actually broken down as he claimed in the Facebook post. Accordingly, the second employee’s termination was permissible.

Chairman Miscimarra (R) dissented. While he agreed that the second employee was properly fired, he found that the first employee was not engaged in protected, concerted activity by merely providing advice to the other employee to go to court or to the NLRB. There was no evidence that that advice had “some relation to group action in the interest of employees.”

Finally, the majority and dissent disagreed over the application of a 2011 NLRB decision in Continental Group. In that case, the NLRB held that discipline imposed pursuant to an unlawfully overbroad work rule could be unlawful if the employee was disciplined for (a) engaging in protected, concerted activity or (b) engaging in activity that was not concerted, but “touches on the concerns animating” Section 7 of the NLRA. Continental Group also recognizes certain employer affirmative defenses if the employee can make the required showing.

Applying that standard in this case, the majority noted that the ALJ determined that the employer’s policy was overly broad, a determination that the employer did not appeal. Finding that Continental Group should therefore apply, it held that the decision lent additional support to its conclusion that the first employee’s termination was illegal, but that the outcome would not otherwise change. Chairman Miscimarra authored a lengthy opinion explaining why Continental Group should be overruled, and the majority penned an extended defense of the decision in its opinion.

For the labor professional, the case has two main points of significance:

  • First, it provides additional guidance on how to apply the concept of protected, concerted activity, including in the area of discipline for social media content. Employers should continue to seek advice from qualified labor counsel before finalizing disciplinary decisions on these topics.
  • Second, it is a reminder of how the delay in filling the two open NLRB seats has an impact on the development of the law at the NLRB. President Trump’s pending nominations for the NLRB, both of whom are Republican, may very well have joined Chairman Miscimarra’s opinion, changing the outcome of the decision.