Employees’ rights to act together to address conditions at work are protected under the National Labor Relations Act. This protection applies equally to both union and non-union employees and extends to employees’ work-related conversations on social media. But, as many employers may wonder, how far does the protection of the Act reach? The NLRB’s decision in Richmond District Neighborhood Center and Ian Callaghan (Case 20-CA-091748, October 28, 2014) provides some guidance on it.
In this case, two employees engaged in an exchange on Facebook discussing in detail how they would disregard the employer’s specific policies and rules and act to the detriment of the employer’s interest. They described things like: “we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like…making it all happy-friendly-middle school campy,” we’ll “have parties all year and not get the office people involved,” “field trips all the time to wherever … we want!,” and “I’ll be back to raise hell wit ya.”
These two employees were previously extended an offer of continued employment for the upcoming school year. But, upon seeing screenshots of the Facebook conversation, the employer rescinded the offers.
The Board ruled in favor of the employer and held that the employer was not obliged to wait for the employees to actually act on the insubordinate plan they advocated on Facebook. The Board’s decision was based on the finding that the employees’ statements on Facebook were “pervasive advocacy of insubordination . . . comprised of numerous detailed descriptions of specific insubordinate acts[.]” The Board concluded that such conduct was “objectively so egregious as to lose the Act’s protection and render [the employees] unfit for further service.” The Board, however, indicated that “brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation” would be protected by the Act.
The takeaway of this decision is that the breadth of the NLRA’s protection has its limit; when an employee’s discussion on social media involves a specific, detailed insubordinate scheme that may pose a serious threat to the employer’s business if acted on, such a discussion falls outside the protection of the Act. This is an evolving area of the law and employers should consult with counsel when considering taking action against employees related to posts or comments made on social media.