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The limits of discussing the workplace on social media


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Williams

By Lee Williams

Hitting out at the jobsite
The case involved the circumstances regarding two employees’ departure from a community outreach center focusing on teenage students.  Although the details of the departure were not made clear, the employees worked at the center in May 2012 and were both sent rehire offers in July 2012.  In May, the entire center’s staff had a meeting with the supervisor in which multiple issues between the teen center staff and office staff were discussed.

Prior to accepting the rehire offer, the two employees discussed whether they would return to work for the center on their social media pages.  The individuals had the privacy on their pages set to “just my friends” making the conversation unavailable to the general public.  In their posts, the employees agreed they would return to work for the center, but openly derided the office staff and their policies.  The employees stated they would throw parties all year and have field trips for the kids without regard for budgetary concerns or seeking permission from the office staff.  In addition, the employees used foul language, and a former student who had graduated and was no longer attending the center participated in the conversation.  

The center’s human resources department was made aware of the social media conversation and received screenshots of the website detailing the conversation.  The conversation was reviewed by the HR manager and the center’s directors.  The center determined the employees should not be rehired.  The employees received letters retracting their rehire offers citing the social media conversation and concerns they would not follow directions and could potentially endanger teens at the center.

When a post crosses the line
The former employees argued they were engaged in concerted activity protected by the NLRA.  In his ruling, the NLRB judge found the employees had engaged in concerted activity which would normally be protected by the NLRA.  However, the administrative judge found the conduct of the former employees was so appalling as to be excluded from the NLRA’s coverage.  In ruling for the community center, the judge focused on the community center’s need for governmental and taxpayer funding and heavy reliance on donations.  The judge believed the community center lawfully concluded the social media posts could potentially be seen by individuals from the community and have an adverse impact on the center’s funding or the willingness of parents to send children to the center.

What employers should know
While this ruling is favorable to employers, it is important to remember the law surrounding social media posts is still materializing.  This ruling represents the outer boundary of what will not be protected by the NLRA, namely, egregious activity or activity which renders an employee unfit for continued employed.  This will almost always be a fact intensive determination and will depend on all the surrounding circumstances.  Employers should proceed carefully in this area and seek guidance to ensure an informed decision.

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