Employers can take some comfort in a recent decision by an administrative law judge who ruled against a former employee who had engaged in protected concerted activity under the National Labor Relations Act (“NLRA”). Regular readers of my posts should remember a few of my articles that explain how even private non-unionized workplaces are subject to the NLRA and the National Labor Relations Board (“NLRB”). Under Section 7 of the NLRA, employees have the right to engage in concerted activities for their mutual aid and protection. And, an employer would violate Section 8(a)(1) of the NLRA if it disciplines or otherwise threatens, restrains, or coerces employees because they engage in protected concerted activities. Employees who believe their rights under the NLRA have been violated, can bring their claims before the NLRB.
Typically, the NLRB is pro-employee, as I’ve discussed in prior posts. So, when the NLRB makes a finding in an employer’s favor, it is always somewhat surprising. On November 5, 2013, in the case of Richmond District Neighborhood Center and Ian Callaghan, an administrative law judge made one of these somewhat surprising rulings.
What The Case Is About:
According to the administrative law judge, the Richmond District Neighborhood Center is a non-profit corporation that develops and provides high quality youth, adult, and family programs in the Richmond District of San Francisco. One of these programs provides after school activities for high school students. Ian Callaghan worked at the Beacon Teen Center as a teen activity leader. In the summer of 2012, the Center offered to keep Callaghan on in his position, but only offered a lower position to one of Callaghan’s Facebook friends, Kenya Moore.
Later in the summer, Callaghan and Moore engaged in a conversation using Facebook. The entire conversation is detailed in the administrative law judge’s decision. They were complaining about work conditions and feeling undervalued. Their posts included the following:
- “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 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.”
- “…don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids :-)”
- “[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.”
This Facebook conversation was eventually shown to the employer, and the two employees were fired from their jobs. Callaghan then filed a complaint with the NLRB alleging that his employment was terminated in violation of the NLRA.
What The Judge Decided:
Callaghan argued that he was fired for engaging in protected concerted activity under the NLRA. The administrative law judge agreed. However, he continued to analyze the Facebook comments and determined that such comments/conduct were so egregious as to take them outside of the NLRA’s protection and was of such character as to render the employees unfit for further service. He supported this finding by explaining that the employees’ Facebook conversation jeopardized the employer’s public funding and private donations, and also raised concerns of the children’s safety. Specifically, the judge wrote: “Respondent was concerned that its funding agencies and the parents of its students would see the Facebook remarks. I find that Respondent could lawfully conclude that the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service.”
What Employers Can Learn From This Decision:
Employers should understand that this one decision is helpful, but perhaps still rare. Ultimately, however, employers should understand that not all employee concerted activities are protected. When not sure, employers should focus on whether the comments, whether on social media or not, threaten the company’s business interests or demonstrate the the employee is unfit for service. Such comments will most likely be beyond mere employee “venting” or a bit of bad publicity. Here, the judge was quite concerned with the safety of the children and with the company’s interests in protecting its sources of funding. Though this case may not have come out the same way if the employer was a factory instead of a teen activity center, employers need not always believe they are unable to discipline an employee due to social media posts. Even still, however, employers should always analyze each specific situation and consult with an attorney if necessary.
What Employees Can Learn From This Decision:
Where to begin. There are so many things. The primary take away is: do NOT become Facebook friends with co-workers, supervisors and managers. These people probably would never have been fired if they weren’t Facebook friends. Presumably, they would not have had this conversation, or would have had it via private texts, or in person. Instead, they had this conversation via Facebook and one of their coworkers informed their employer of the conversation.
Another take away for employees is that there is a protected way to try to improve working conditions. Don’t voluntarily and unwittingly demonstrate that you are an unfit employee. When you and your colleagues discuss workplace issues, keep it professional and constructive. Employees are likely to gain more by being respectful instead of classless.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.
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