NLRB ok's firing of two employees who trashed their company on Facebook

November 15, 2013
By Eric B. Meyer on November 15, 2013 7:00 AM |

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It's been a while since we've discussed discipline for employee Facebook behavior. So, let's go over some basics. Generally speaking:

  1. one employee, griping alone on Facebook about his employer, can be fired; but

  2. two employees, complaining together on Facebook about their employer, cannot be fired.

The distinction is that the two employees are engaged in concerted activity -- group discussion of workplace issues -- which, even in a non-union private-sector workplace, is protected under the National Labor Relations Act.

However, as two employees recently learned, concerted activity has its limits -- even on Facebook.

Moore and Callaghan worked for a non-profit in California -- right up until their employer learned about this conversation on Facebook:

Moore: U goin' back or no??
Callaghan: I'll be back, but only if you and I are going to be ordering shit, having crazy events at the Beacon all the time. I don't want to ask permission, I just want to be LIVE. You down?
Moore: I'm goin''' to be a activity leader I'm not doing the t.c. [sic] let them figure it out and they start loosin' kids I ain't help'n HAHA
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don't feel like being their bitch and making it all happy-friendly middle school campy. Let's do some cool shit, and let them figure out the money. No more Sean. Let's fuck it up. I would hate to be the person taking your old job.
...
Callaghan: hahaha! Fuck em. Field trips all the time to wherever the fuck we want!
Moore: U fuck'n right see you

After the employer canned both Moore and Callaghan, Callaghan pursued an unfair labor practice claim with the National Labor Relations Board.

An Administrative Law Judge determined (here) that this Facebook conversation did constitute concerted activity. However, the ALJ upheld the termination, concluding that the employer reasonably believed that the Facebook comments jeopardized the employer's funding and the safety of the youth it serves. 

Of course, it will not surprise me if this goes up to the full Board on appeal and gets reversed. 

Since taking an acute interest in social media and the workplace, the Board's position has been that employees have a fairly unfettered right to discuss terms and conditions of employment together on Facebook. Thus, if you have employees who engage in similar online behavior, whether you are unionized or not, don't count on a termination holding up if the matter is presented to the Board.