NLRB: Employees’ Profane Facebook Comments Aren’t Protected Activity

Should HR and management have to monitor employees for e-mail profanity? (Illustration by Dreamstime)

By Suellen Oswald

After years of National Labor Relations Board decisions protecting employees’ profanity-laced tirades and outright threats against management in social media stream-of-consciousness posts, the Board recently said “no.”

In Richmond District Neighborhood Center, the NLRB upheld the administrative law judge’s decision that two employees’ Facebook plan for insubordination veered into the land of “unprotected” activity under the National Labor Relations Act.

At the close of the school year, employees of a teen center anonymously submitted the pros and cons of working at the center. The cons included mistreatment by management, lack of appreciation, failure to act on employee suggestions, and lack of clarity on policies controlling employee expenditures.

What they wrote on Facebook

Before returning to work the following school year, two employees exchanged Facebook posts in which they wrote that (rather than following the center’s policies) they would:

  • “Be ordering sh*t, having crazy events . . . all the time.”
  • “I don’t want to ask permission.”
  • “Let’s do some cool sh*t, and let them figure out the money.”
  • “Field trips all the time to wherever the f*ck we want!”
  • “Play music loud.”
  • “Teach the kids how to graffiti up the walls.”
  • “We’ll take advantage.”
  • I would hate to be the person takin your old job.
  • I AINT GOBE NEVER THERE.”
  • “They start loosn kids I aint helpn.”
  • Let’s f*ck it up.

Planned insubordinate acts were the issue

The employees’ profanity and disparaging comments about management did not concern the Board.

However, the “magnitude and detail” of the numerous insubordinate acts these employees planned met the Board’s definition of conduct that was so objectively egregious that it lost the Act’s protection and rendered both employees unfit for further service.

The Board easily dismissed the NLRB General Counsel’s claims that the posts were simply a continuation of the employees’ anonymous complaints about management from the prior school year and that no reasonable person could construe the posts to be proposed insubordination since neither employee had a history of insubordination.

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Instead, the Board found that the posts constituted a “lengthy exchange [that] repeatedly described a wide variety of planned insubordination in specific detail” and not merely jokes, hyperbole or brief comments.The “magnitude and detail of insubordinate acts advocated in the posts” created legitimate grounds for concern that the employees would act on their plan, presenting risks no reasonable employer was required to take.

The NLRB’s decision focused on what it believed was a plan by employees to engage in a disruptive pattern of insubordination on many levels – all of which could have jeopardized the center and the students whose care was entrusted to the center.

Lengthy evidence like this is rare

Naturally, employers applaud this decision. But keep in mind that the Board explicitly relied on the fact that the Facebook exchange was a “lengthy” exchange that “repeatedly” described a “wide variety” of “planned” insubordinate acts in “specific detail.”

When is the last time you had that kind of evidence of [planned] misconduct in social media posts? Employers would be wise to conclude that, absent similar facts, there likely will not be many similar decisions from this Board.

This was originally published on Littler Mendelson’s Labor Relations Counsel blog. © 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Suellen Oswald is a Shareholder in the Cleveland office of the law firm Littler Mendelson. She focuses her practice on labor law, employment litigation and staffing and contingent workers. She is certified as a labor and employment law specialist by the Ohio State Bar Association and has represented employers of all sizes, from small businesses to Fortune 100 companies, in numerous employment lawsuits in both federal and state courts, involving matters such as union organizing campaigns, collective bargaining negotiations, contract administration, and labor arbitration cases. Contact her at soswald@littler.com.

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