Employers Win Latest Round in Social Media Prize Fight

By John S. Gannon

We’ve written extensively on the battle between ticked off employers and their disgruntled employees who lash out on social media. First there was the car salesman who was lawfully fired for posting pictures of and mocking a car accident at a company-owned dealership (click here to see one of the offending pictures). Then came the group of employees who were let go after complaining about late working hours at a San Francisco clothing store. Their termination violated the National Labor Relations Act (“NLRA”).

In the latest installment, we bring you the tale of two employees working at a non-profit company that provided after-school and summer programs for kids. The two were given an opportunity to discuss the pros and cons of working at the youth center during a staff meeting. Their complaints apparently fell on deaf ears. They decided to take their feelings to Facebook and engaged in a private conversation visible to mutual friends only (some of whom were co-workers). Here’s a synopsis of their virtual conversation, which started when one suggested he would return for another year at the center but only to have “crazy events” and “play loud music, get artists to come in and teach kids how to graffiti up the walls and make it look cool”:

  • “I don’t feel like being their b*tch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money…. Let’s f*ck it up.”
  • “I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities.”
  • “You right. They don’t appreciate sh*t.”
  • “Let them figure it out and if they start loosin’ kids I ain’t help’n.”
  • “[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”

Can you guess what happened next? Sure you can. A co-worker showed the conversation to the employees’ supervisor and the two were sent packing. They sued claiming their termination was unlawful because the Facebook conversation was protected under the NLRA, and they lost.

The Administrative Law Judge who heard the case first looked at whether the Facebook conversation was “concerted activity.” Remember, in order to gain protection under the NLRA, social media conversations must be “concerted”—generally meaning two or more employees acting together to initiate group action—as well as “protected”, which means that the employees are seeking improvements in working conditions for the benefit of others. The Judge concluded that the comments were “concerted.” The two employees were, in his opinion, continuing the complaints from the staff meeting when they took their fight to the internet.

The bigger question was whether the conversation was “protected” under the NLRA. The Judge said it was not and therefore found no violation. True, the employees were arguably discussing working conditions during their profanity laced tirade. However, if the youth center gave credence to the employees’ assertions that they would party all year, take field trips and not help when kids are lost, this could be detrimental to the center’s eligibility for grants and future funding. The employer had a legitimate business concern that parents and agencies would see this commentary and not be pleased (even though it was a private conversation that was for friends’ eyes only).

The decision is comforting for employers who may believe, mistakenly, that each and every employee posting on Facebook is protected. If you have legitimate business concerns that stem from the postings—other than hurt feelings about management style—this may be grounds to terminate employees who lash out on social media. Keep in mind that the NLRB is equally concerned about overbroad social media polices. With the New Year approaching, now is as good a time as ever to implement a social policy or have an existing policy updated.