Several months ago, we blogged about employee protections afforded by the National Labor Relations Board with respect to social media postings (Increased Focus on Employer Policies and Handbooks). The board has been very active the past several years making determinations regarding whether employees’ work-related Facebook posts are the type of protected concerted activity afforded protection under section 7 of the National Labor Relations Act (NLRA). In most of the cases it has considered, the board has determined that employees’ work-related communications via social media were protected concerted activity subject to the protections of the NLRA. In a recent decision, however, the board ruled in a case involving the type of social-media communications that are so inappropriate that they lost their protection.
Generally speaking, the NLRA protects non-governmental employees engaged in activities to influence change in the workplace (so called “protected concerted activity”) – even if those employees are not union members and the activity has no connection to union activity or a labor union. Thus, the NLRA protects the rights of all private sector employees to join together, with or without a union, to improve their wages and working conditions.
In the recent case of Richmond District Neighborhood Center, the issue before the board was a Facebook “conversation” between two employees. The two employees worked for a teen center in San Francisco. At the end of the center’s 2012 summer program, the employer extended offers of employment to both employees for the 2012–2013 school year and the 2013 summer program. However, one of the employees was demoted due to a negative performance evaluation.
After receiving their offer letters in August 2012, the two employees engaged in a Facebook ‘conversation’ full of profanity. The ‘conversation’ also included a former student participant in the teen program. The two employees discussed their intent to be regularly absent from work, plan activities for the students without obtaining the employer’s authorization, play loud music and teach the student participants to spray graffiti. The employees’ exchange was visible to any person designated as a Facebook “friend” of either of the employees. The day after this exchange, another employee of the teen center sent screen shots of the Facebook exchange to management, and the employer rescinded both employees’ offers. The employees challenged their terminations.
The board concluded that “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 the employees unfit for further service.” The board’s decision was based primarily on the type of the misconduct the employees advocated.
To discuss whether or not your employees’ communications via social media posts may be protected as a type of protected concerted activity under section 7 of the NLRA, please contact:
Jonathan M. Weis at:
firstname.lastname@example.org or 312-368-0100
email@example.com or 312-368-0100