Finally: The NLRB places limits on insubordinate Facebook conduct

Melissa Schilling Iowa Employment and Labor Law Dickinson Law Firm Des Moines, Iowa

Posted on 11/04/2014 at 09:03 AM by Melissa Schilling

On October 28, 2014, the National Labor Relations Board (NLRB) finally sided with the employer in a case involving Facebook comments. In Richmond District Neighborhood Center, Case 20-CA-091748, the NLRB held that a Facebook conversation between two employees was so egregious that it lost protection under the National Labor Relations Act (NLRA), and justified the employer's rescission of its offers to rehire the two employees.

The NLRB's decision in Richmond illustrates that there are limits on what constitutes protected, concerted activity, especially in the context of social media. Under the NLRA, all private-sector employees, unionized or not, have the right to act together to try to improve their pay and working conditions or fix job-related problems. This is called protected, concerted activity. If an employer even attempts to interfere with these rights, that employer has violated the NLRA. Recently, the NLRB has applied these principles to protect communications in the context of social media. For instance, in Hoot Winc LLC and Ontario Wings, LLC d/ba/ Hooters of Ontario Mills, Cases 31-CA-104872, 31-CA-104874 (2014), an NLRB Administrative Law Judge found that two Hooters waitresses could not be terminated for publicly criticizing their coworker and manager on social media in violation of Hooters policies. Similarly, in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), the NLRB found that liking the comments of a former employee, who posted disparaging comments about his supervisor, was protected, concerted activity under the NLRA. In Richmond, however, the NLRB found that the employees Facebook comments were not entitled to protection under the NLRA. The Richmond case involved two employees who worked at a teen center that provides after-school activities to high school students. At a year-end meeting, employees were asked to write down the pros and cons of working at the center.

The employees then anonymously wrote eight pros and 23 cons. After the meeting, some of the employees believed the managers had taken their complaints personally. Two of the employees then took to Facebook to complain about their supervisors and to discuss their plan to engage in insubordinate acts. Their Facebook postings included statements about hosting crazy events at the teen center, losing kids, and damaging the teen center. The NLRB found that these comments were not protected under the NLRA. To reach this conclusion, the NLRB applied the standard of whether the conduct was so egregious as to take it outside the protection of the Act, or of such a character as to render the employee[s] unfit for further service. Under this standard, the NLRB found 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 to render [the employees] unfit for further service. The NLRB further reasoned that the magnitude and detail of insubordinate acts advocated in the posts reasonably gave the [Center] concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take. 

Take Aways: This case illustrates that the NLRB is willing to acknowledge that there are still some employee activities that may fall outside the protection of the NLRA if they involve violence, sabotage or extreme insubordination and are capable of jeopardizing an employer's business. It also serves as a reminder to employers to consult with legal counsel prior to taking disciplinary action against employees for conduct that may constitute protected concerted activity.  

For any questions regarding employment law please contact Melissa Schilling.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Melissa Schilling


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