NLRB Upholds Termination of Employees for Facebook Messages

An administrative law judge (ALJ) for the National Labor Relations Board (NLRB) recently upheld the termination of two employees of a nonprofit youth center for exchanging Facebook messages stating their plan to perform their jobs poorly. In Richmond Dist. Neighborhood Ctr. (NLRB 2013), the ALJ found the employees were clearly discussing wages, hours, and terms and conditions of employment on Facebook. This conduct is normally protected under the National Labor Relations Act (NLRA), but the ALJ held the employees lost the Act’s protections due to the content of their messages.

Specifically, the employees said that they were going to stage “crazy events” without the employer’s permission and “have hella clubs and take the kids.” The employees also said they were going to take the youth participants off-site without permission and ignore directives from their supervisors, and that “when they start loosn (sic) kids, I ain’t helpin.” The employees were friends with many other employees at the youth center, one of whom alerted the employer to the messages. The employer terminated the employees because such behavior could have jeopardized the center’s funding and led to other potential liability.

The NLRB’s General Counsel argued that the Facebook messages should be protected, but the ALJ found the employees’ conduct egregious enough to take it outside the scope of protected activity, and to render the employees unfit for further service.

This case is a good example of the NLRB’s willingness to take seemingly outrageous cases forward against employers, and serves as a reminder to employers that activity that may otherwise be protected can lose protection under certain circumstances. It is best to consider discipline based on social media posts on a case-by-case basis. Our attorneys are available to discuss these issues with you.