National Labor Relations Board finds employee’s Facebook posts not protected

Author: Stephen D. Hans & Associates

A National Labor Relations Board (NLRB) administrative law judge (ALJ) surprised many when he found in favor of the employer in an unfair labor practice complaint.

On October 19, 2012, an unfair labor practice charge was filed against the Richmond District Neighborhood Center that offers after-school programs for high-school students in San Francisco.  The NLRB alleged that the center had terminated two employees because they engaged in “concerted activity” protected by the NLRA.  An employer is prohibited from preventing employees from engaging in such activity or in taking disciplinary action against them for doing so.  The NLRB categorizes “concerted activity” as activity that is “engaged in, with or on the authority of other employees, and not solely by and on behalf of the employee himself.” This may cover a wide range of discussions among employees about their workplace, workplace conditions, and complaints.

The NLRB contended that the concerted activity began in May 2012 when the employees voiced criticisms about the center during a staff meeting and subsequent Facebook conversations that took place later and continued the criticism. This included the employees discussing:

-How they were going to mess things up at the center
-That they would be uncooperative with the staff
-That they would allow the students to draw graffiti on the walls, go on trips, and have parties.

And while the ALJ agreed that the Facebook comments were concerted activity during which the employees complained about the office staff, feelings of not being appreciated, and a demotion, the judge ruled that the concerted activity was not protected. In explanation, the ALJ said that the conduct, “is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service.”  Citing that the Facebook comments put the center’s ability to provide for the safety of students, as well as its ability to raise funding for its programs through grants and private donations, at risk.

For help with social media policy talk to a NY employment defense law attorney

There is no question that social media is here to stay and that it will be a venue used by employees to discuss workplace conditions. And this recent decision shows that employee conduct can be subject to disciplinary action and may not in all cases be protected by federal law.  However, employers need to be cautious when approaching the subject of social media exchanges between employees.  If you do not have social media and other employee policies in place, your business may be at risk.  To discuss your employee policies or any other employee matter, contact a NY employment law attorney today.  An experienced attorney can help you formulate and adopt policies that can reduce your liability and complies with federal and state laws.


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