Tuesday, November 26, 2013

The verdict is in - you are not invisible - NLRB judge upholds firings for Facebook rants

Think nobody's looking?

Think nobody's worried about what you say on social media?

Think again.

"The employer received screenshots of the dialog and withdrew the employees’ rehire letters, terminating their employment."

NLRB judge upholds firings for Facebook rants

An employer did not violate Section 7 of the National Labor Relations Act by firing two employees for a Facebook conversation threatening insubordination and other misconduct, a National Labor Relations Board (NLRB) judge has ruled (Richmond Dist. Neighborhood Ctr. and Ian Callaghan (NLRB, Nov. 5, 2013)). The ruling confirms that in certain circumstances an employer may discipline employees even though they are engaging in “concerted activity.”

Employees vent on Facebook. The employees in the case worked for the teen center of a nonprofit organization that provided adult, youth, and family programs. In a profanity-laced Facebook dialog, the two discussed one employee’s demotion and complained that the employer considered them “line workers,” did not appreciate their efforts, and failed to address employee concerns. The employees also proposed to stage “crazy events” without permission, play loud music and teach kids to “graffiti up the walls,” have parties and field trips “all the time,” have fun but “never be there,” and take the kids to “clubs.” The employer received screenshots of the dialog and withdrew the employees’ rehire letters, terminating their employment.

Employees may forfeit rights. Section 7 authorizes employees to act in concert for mutual aid and protection, whether or not they belong to a union. Employees are protected when they act with or on behalf of other employees to improve working conditions, such as discussing wages or the benefits of a union. However, Section 7 does not protect employees who act alone or on their own behalf, or who simply gripe without proposing or anticipating any future collective action. Moreover, Section 7’s protection may be lost if concerted activity is accompanied by “opprobrious” conduct, according to NLRB precedent.

Judge sides with employer. The two employees were engaging in concerted activity when voicing disagreement with teen center management, the judge decided. It did not matter that they had no specific plans for group action at the time, because such discussions are often a precursor to group action. Despite this finding, the judge determined the employees’ terminations were justified. The employer believed that the employees’ comments — if seen by the government, private donors, and students’ parents — could jeopardize the teen center’s funding and the safety of the youth it serves. In the judge’s opinion, the employer lawfully concluded that Section 7 did not protect the actions proposed in the Facebook dialog and the employees were “unfit for further service.”

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