Although the NLRB has been very protective of employees’ rights to comment on Facebook, sometimes employees can go too far. In this recent case, the legal line between protected activity and unprotected activity was crossed when two employees openly planned to be insubordinate.
Facebook Postings Lead to Termination
The case involved two teen center employees who were in charge of after-school activities at a local high school. At the end of the summer break, employees are offered the chance to return the next school year. In this case, one employee was offered the chance to return to her former position, but another employee was offered only a demotion upon return due to poor performance during the past year. The demotion apparently got under the skin of that employee, which led to an extended two-way exchange on Facebook about work at the teen center.
The employees referenced numerous acts of potential insubordination, including (with some editorial license):
- Refusing to obtain permission as required by the employer’s policies before organizing youth activities;
- “Ordering s**t, having crazy events at the center all the time. I don’t want to ask permission . . .”;
- “Let’s do some cool s**t, and let them figure out the money”;
- “Field trips all the time to wherever the f**k 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 teen center (“they start loosn kids i aint helpn”; “Let’s f**k it up”).
It happened that another employee of the teen center saw this Facebook exchange, took screenshots of the postings and shared them with management. Shortly after seeing the screenshots, the employees’ re-hire offers were withdrawn for the next school year .
Objectively Egregious Advocacy of Insubordination Is Not Protected
The employees (who were not represented by a union) filed unfair labor practice charges with the NLRB. After a hearing, the administrative law judge recommended dismissal of the complaint. The NLRB agreed and dismissed the case. Based on precedent going back decades, the NLRB panel found that “the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [both employees] unfit for further service.” The NLRB reasoned that Facebook posts were similar to unprotected talk urging work slowdowns as distinguished from mere joking exchanges that are generally protected. According to this NLRB panel, the magnitude and detail of the insubordinate acts advocated in the posts reasonably gave the employer concern that the two employees would act on their plans, a risk a reasonable employer would refuse to take. This employer, the NLRB ruled, was not obliged to wait for the employees to follow through on the misconduct they advocated.
Lessons for Employers
This case suggests that there truly is a line that employees may not cross when discussing certain types of job actions such as overt insubordination, refusal to obey instructions, work slow downs or planned “sick outs.” However, knowing exactly where that line is can be a challenge given the past ruling of the NLRB. It is significant to note that this case was decided by a three-member panel of the NLRB that was comprised of two Republicans and only one Democrat. Had the makeup of the panel been different, the outcome might have been different. Nevertheless, when employees act in an egregiously insubordinate manner or even threaten to do so on Facebook or elsewhere, employers can take some comfort that in egregious cases they can do what’s right to protect their business and bring a halt to employee misconduct.
Reference: Richmond District Neighborhood Center, (NLRB October 28, 2014)
If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.
