Employees can say WHAT on Facebook?

The full National Labor Relations Board (NLRB) recently upheld an earlier decision that an employer acted improperly for firing an employee who posted a personal and obscene rant about his supervisor on Facebook. The employer, a New York City catering company, was two days away from a union election when it fired a 13-year employee for posting the following while on break from his server position:

“Bob is such a NASTY M____R F_____R don’t know how to talk to people!!!!!! F___ his mother and his entire f___ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! … .”

The post was precipitated by the employee’s supervisor, the aforementioned Bob, yelling at the employee and his coworkers to “Turn your head that way and stop chitchatting,” among other loud directives, within earshot of guests. The NLRB found the Facebook post was “protected concerted activity” under the National Labor Relations Act. The employer was required to pay back wages and reinstate the employee to his previous position.

The message for employers is that disciplining employees for Facebook or other social media posts can be problematic, no matter how vile the post. Employers should analyze the potential for a “concerted activity” claim before disciplining an employee. In this case, a union election was in the works at the time of the incident; however, employers who have never experienced any union activity should be aware that the National Labor Relations Act can still apply. MSEC is available to assist in these situations.