Facebook Posts by Employees Can Go Too Far and Lose Concerted Activity Protection

posted by Michael R. Fortney  |  Nov 4, 2014 2:43 PM in Employment Law

While some Facebook posts by employees are protected as concerted activity under the National Labor Relations Act, Facebook posts by employees that advocate insubordination or undermine leadership do not receive those same protections and employees making those posts may be fired.

This was the case in a recent National Labor Relations Board ("NLRB") opinion. Two employees of the Richmond District Neighborhood Center in San Francisco had a public conversation on Facebook where they repeatedly advocated insubordination. The statements mentioned disregarding rules, undermining management, not obtaining permission from supervisors, and neglecting duties. Upon receiving screenshots of the conversation, the employer promptly rescinded the employees' rehire offers.

Section 7 of the NLRA gives employees rights to organize, including forming or joining labor organizations and engaging in other concerted activities. However, the panel found that "the pervasive advocacy of insubordination in the Facebook posts" was " so egregious as to lose the  Act’s protection." The panel found that the employer was reasonable in determining that the two were capable of insubordinate conduct when the comments described a detailed, wide variety of insubordination.

Once again, this case does not mean that any comment posted on Facebook by an employee about an employer is not protected. There are plenty of instances where Facebook speech by an employee about an employer was protected. This case simply helps employers and employees see where the line that divides protected and non-protected speech is.

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