Why it matters: A three-member panel of the National Labor Relations Board (NLRB) determined that two employees terminated because of an exchange on Facebook were not fired in violation of the National Labor Relations Act (NLRA) because of the “magnitude and detail of insubordinate acts advocated in the posts.” Two employees of a social service agency engaged in a lengthy discussion on the social networking site, agreeing they would not be their supervisor’s “bitch” in the future and making plans to “raise hell,” host “crazy events” without permission, and take field trips with the students “all the time to wherever the f*** we want!” The employees were fired because of their comments. Although the Board noted that the conversation would normally have constituted protected activity, the employees lost the protection of the NLRA because they advocated insubordination as well as the intent to undermine the leadership of the employer and neglect their duties. The NLRB has taken a decidedly pro-employee stance in prior decisions addressing social media – most recently finding that an employer illegally terminated an employee over a Facebook “like” – so the decision provides a welcome ruling for employers from the agency.

Detailed Discussion

Ian Callaghan and Kenya Moore both worked for the Beacon Teen Center at San Francisco’s George Washington High School, providing afterschool activities to the students. During the 2011-2012 school year, Callaghan was an activity leader and Moore worked as a program leader.

At a year-end staff meeting, the center’s supervisor asked the employees to anonymously write down the pros and cons of working at Beacon. The staff listed 8 pros and 23 cons and felt they were given the “cold shoulder” from the administration for the remainder of the year.

Callaghan and Moore both received rehire letters for the 2012-2013 school year, although Moore was demoted to an activity leader. Prior to the start of the school year, the two engaged in an exchange on Callaghan’s Facebook page beginning with Moore asking if Callaghan planned to return.

His response: “I’ll be back, but only if you and I are going to be ordering sh**, having crazy events at the Beacon all the time. I don’t want to ask permission, I just want it to be LIVE. You down?” The conversation continued, featuring other comments like, “I don’t feel like bein their bitch” and “Let’s f*** it up.”

Management received screenshots of the conversation the next day and rescinded the rehire offers.

Although the employees contended the action violated their NLRA rights, a three-judge panel unanimously upheld the termination, concluding that the employees forfeited the protection of the Act.

“Callaghan and Moore’s Facebook exchange contains numerous statements advocating insubordination,” the panel wrote. The comments referenced refusing to obtain permission as required by the employer’s policies before organizing youth activities, disregarding specific school district rules, undermining leadership, neglecting their duties, and jeopardizing the future of the Beacon. Even setting aside the profanity and the disparaging comments about the administration, the employees stepped outside the bounds of NLRA protection, the panel added.

“We find 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 render Callaghan and Moore unfit for service,” the Board said.

Although the employees argued that the Facebook comments should be viewed against the backdrop of the complaints from the meeting the previous May and in light of Moore’s demotion, the panel found the exchange too serious and detailed for such an explanation.

“We are not presented here with brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation,” the panel wrote. “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the [employer] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.”

The employer was not obliged to wait for the employees to follow through on the misconduct they advocated, the NLRB said, dismissing the unfair labor practices complaint.

To read the decision in Richmond District Neighborhood Center, click here.