Fired for “private” Facebook postings! NLRB administrative law judge indicates some boundaries on protected concerted activity

One of the fundamentals of labor law, the concept of “protected concerted activity,” has received much attention in recent years as judges look at how this traditional principle applies to social media.

When more than one worker comes together to raise complaints about their collective working conditions, this action constitutes concerted activity; that action may be protected against employer retaliation or discrimination by the National Labor Relations Act (“NLRA”) both for employees with a Union representative and those without.  The most quintessential case of such action occurred when, after several employees in a machine shop complained individually about the coldness of the shop during the winter, seven of them walked out together on an extraordinarily cold day saying that it was “too cold to work.”  The boss discharged them for violating a rule forbidding any employee to leave without permission of the foreman.  The National Labor Relations Board (“NLRB”) found the employees had acted in concert in protest against the employer’s failure to provide adequate heat in their place of work, and that their discharge violated the NLRA.

We know this principle applies when workers express their concerns directly, but does it apply when workers come together, or express concerns, on Facebook? The answer in many cases has been, yes.

The NLRB has also ruled that, in many cases, even offensive language on social media sites can constitute protected concerted activity—so long as it is on behalf of more than just the individual speaker and about working conditions.

Although we have seen speech through social media often afforded protection, a recent case discusses the limits of that protection.  In that case, employee Callaghan was a teen activity leader employed by a non-profit corporation.  Callaghan and another employee, Moore, had a conversation on Facebook complaining about their treatment by their employer.  The employee’s conversation was visible to their Facebook friends only—not the public.

Some of the statements, fully spelled out in the original, included:

  • “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. No more Sean. Let’s f*ck it up.”
  • “You right. They don’t appreciate sh*t.”
  • “[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”
  • “[W]on’t be there Wednesday. I’m outta town. But I’ll be back to raise hell wit ya. Don’t worry. Whatever happens I got your back too.”

A day after the comments were posted, screenshots were sent of the conversation to a manager, and three days after that, Callaghan and Moore were terminated.  They filed a charge with the NLRB.  
Recently, an administrative law judge with the NLRB ruled that although the remarks disagreeing with the management on Facebook were concerted activity, the remarks were not protected by the NLRA because the conduct was so egregious as to take it outside of the protections of the NLRA, and that the conduct was of such character as to render the employees unfit for further service.  The judge focused on the fact that the employee’s comments apparently jeopardized the non-profit’s funding from government and private donors and the safety of the youth it serves.

In sum, while it is possible to engage in protected concerted activity on social media, if the speech rises to a certain level, it may no longer be an expression protected by the NLRA.  What is more—do not be fooled into thinking that simply because your Facebook page is set to “Friends Only” or “Friends of Friends,” management can’t get a copy of what you post.

To discuss this case or protected concerted activity in the context of social media, please contact your labor law counsel.

By Lisl Duncan | December 10, 2013

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