Over the last several years, we have been bombarded with cases from the National Labor Relations Board (“Board”) featuring employees bashing their employers on social media where the Board determined the speech was protected under the National Labor Relations Act (“Act”). As many employers know, where the employees’ speech is protected, the employer cannot take disciplinary action. In a refreshing divergence from this pattern, the Board recently decided two employees’ otherwise protected posts about their employer on Facebook crossed the line and lost the Act’s protection. Generally, under the Act, employees have the right to discuss the terms and conditions of their employment (including complaining about how bad their supervisor is) and employers cannot take disciplinary action against them. However, this right has a limit and where the conduct or communication is particularly bad, it may lose the protection of the Act. In making this determination, the question is whether the speech or conduct is “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.”
In this recent case, two employees working at a Teen Center at an afterschool program at a high school were particularly disgruntled stemming from a staff meeting. At the meeting, the employer had asked employees to list the pros and cons of working at the Center. The employees felt that once they submitted these evaluations to management, anonymously, that their employer began giving them the “cold shoulder.” The next year, both employees were sent rehire offers but one was offered a job at a lower position.
The employees took to Facebook and had a lengthy conversation voicing their disgust with management and the administrative personnel. The conversation largely focused on the upcoming year where the employees laid plans to disregard management and the administrative personnel as well as school rules and procedures. An Administrative Law Judge (“ALJ”) quickly found this conversation lost protection because it laid out specific plans for insubordination; the Board affirmed the decision.
The Board parsed through the conversation and cited examples of insubordination including “refusing to obtain permission as required by the Respondent’s policies before organizing youth activities (“ordering shit, having crazy events at the [Teen Center] all the time. I don’t want to ask permission”; “Let’s do some cool shit, and let them figure out the money”; “field trips all the time to wherever the fuck we want!”), disregarding the specific school-district rules (“play music loud”; “teach the kids how to graffiti up the walls”), undermining leadership (“we’ll take advantage”; “I would hate to be the person takin your old job”), neglecting their job duties (“I aint gobe never be there”), and jeopardizing the future of the [Teen Center] (“they start loosn kids i aint helpn”; “Let’s fuck it up”).”
The Board held the magnitude and detail of the insubordinate acts referenced in the conversation gave the employer reasonable concern that these two employees would act on their plans, a risk a reasonable employer could refuse to take. Although the Board’s decision focused entirely on insubordination, the ALJ’s decision also mentioned that because the Teen Center receives funding from the government and private donors, the comments jeopardized the program’s funding and the safety of the youth it serves.
Although this case is certainly a win for employers and gives much-needed guidance on what kinds of comments lose protection, this result is not typical in these kinds of cases. The employees’ lengthy discussion and specific examples of the insubordination in which the employees planned to engage made for great facts. Cases usually do not have such strong facts. Another problem is that the Board does not decide that conduct is egregious lightly and in fact gives employees tremendous leeway in this regard. The Board has always acknowledged that “employees are permitted some leeway for impulsive behavior when engaged in concerted activity, as the language of the shop is not the language of polite society.” Therefore, one specific example of insubordination or even a few may not result in the conversation losing the protection of the Act.
Employers should be very leery of relying on this case where their facts are not as strong and should consult legal counsel before discharging employees based on their posts on social media.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
THIS ARTICLE WAS FIRST PUBLISHED ON THE LAW.COM CONTRIBUTOR NETWORK ON DECEMBER 30, 2014.
