Wednesday, November 5, 2014

Facebook Posts too Insubordinate, Lose NLRA Protection

Yesterday, I covered the NLRA and concerted protected activity in my employment law class at Penn State. Here's the text from one of my slides:
Protected Concerted Activity  
  • Concerted - acting in “concert” with other employees (not just for employee’s individual benefit) 
  • Mutual aid or support 
  • Addressing wages, hours, or terms and conditions of employment 
  • Must not be flagrant, egregious, abusive, malicious, defamatory, or highly profane (a little profanity here and there is probably ok).
And then, we discussed social media PCA. The NLRB was kind enough to issue an opinion on point, specifically addressing the last bullet point from my slide. In Richmond District Neighborhood Center (361 NLRB 74), the NLRB addressed Facebook concerted activity.

You can read the Facebook exchange in the opinion - but generally, two employees at a youth centered discussed their plans to stop performing their duties, stop getting the required permission for youth activities, and to instead just "play music loud, get artists to come in and teach the kids how to graffiti up the walls." Oh, and the field trips . . . "Fuck em. field trips all the time to wherever the fuck we want!"

The Facebook posts would likely have been protected activity - two employees discussing problems with the terms and condition of their employment. But, the NLRB ruled that they went too far:
[The] lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail . . . . The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.
Game. Set. Match - to the employer. The Facebook posts were so egregious that they fell outside of the NLRA's protection.

Image: Facebook logo used in commentary on Facebook.