A National Labor Relations Board (NLRB) administrative law judge recently held that while two employees’ Facebook discussions were concerted activity under the National Labor Relations Act (NLRA), the particular conduct at issue was so egregious as to fall outside of the realm of “protected” conduct. The NLRA grants employees the right to act in concert to try to improve their pay and working conditions. Over the past few years, it has begun to examine the policies, procedures and practices of non-unionized workforces, especially with respect to allegations that an employer interfered with employees’ protected concerted activity. In this case, two employees at a high-risk teen center were fired after engaging in back-and-forth chatter on Facebook, including comments that they did not like their jobs, were treated like line-workers and had bad relationships with the office staff. They also made comments suggesting that they would teach the at-risk teens to do graffiti, that they would hold unauthorized and wild events and “[if] they start loosin' [sic] kids I ain’t help'n HAHA.” The judge ruled that while the conduct was, in fact, concerted activity, it was too egregious to be protected by the NLRA. While this case was decided in favor of the employer, employers should exercise caution when deciding whether to discharge employees based upon social media comments. Many comments regarding the workplace – even ones in which the employees use crass language or criticize the company or management – can fall into the arena of protected “concerted” activity, and the egregious-standard applied in this case is still a relatively high standard for an employee to meet.
