Cases involving employee Facebook and other social media posts rarely end well for employers (see here, here, and here). However, on October 28, 2014, the National Labor Relations Board gave an employer a rare Facebook victory in Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), finding that the employer lawfully rescinded rehire offers for two employees because their Facebook posts lost the protection of the National Labor Relations Act.
The employer operates a teen center at a high school and provides afterschool activities for students. Before each school year, the employer sends offer letters to those employees whom it wants to return. The employer had sent rehire letters to the two employees at issue, who engaged in a conversation on Facebook just prior to the start of the school year. Upon learning of the Facebook posts, the employer rescinded their rehire offers because the “statements give us great concern about you not following the directions of your managers in accordance with [the employer's] program goals. … We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants.”
The General Counsel claimed that the employees’ Facebook posts were protected under the Act, and thus could not be the basis for discipline. However, the Board sided with the employer as it found that the employees’ 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.” Specifically, the Board agreed that the employees’ Facebook posts advocated insubordination:
The employees referenced refusing to obtain permission as required by the Respondent’s policies before organizing youth activities (“ordering s—, having crazy events at the Beacon all the time. I don’t want to ask permission …”; “Let’s do some cool s—, and let them figure out the money”; “field trips all the time to wherever the f— we want!”), disregarding 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 duties (“I AINT GOBE NEVER BE THERE”), and jeopardizing the future of the Beacon (“they start lossn kids i ain’t helpn”; “Let’s f— it up”).
(The full, unedited Facebook posts are set out in the decision).
The General Counsel argued that the Facebook posts, when viewed against the backdrop of the complaints articulated at a meeting earlier that year and one of the employee’s recent demotion, could not reasonably be understood as seriously proposing insubordinate conduct. The Board disagreed:
The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that [the employees] 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.
While this decision is encouraging for employers, employers still have a very high burden for establishing that employee communications about their job on social media are not protected by the National Labor Relations Act. Accordingly, employers should always consult their labor counsel before issuing discipline in response to employee communications on social media.