Double Take – An NLRB Win For Employers?

In prior posts, I summarized the three-step analysis that employers should use before taking adverse action against an employee because of that employee’s social media activity:

            1.         Was the social media activity “concerted”?

            2.         If the activity was “concerted”, was it “protected”?

            3.         If the activity was “protected concerted” activity, did the employee engage in conduct that would otherwise take him or her outside of the protection of the National Labor Relations Act (the “Act”)?

With regard to step number 3, there generally has been a very high threshold for an employer to show that activity that is concerted and protected should, nevertheless, not fall within the protections of the Act.  However, a decision issued by the NLRB this month breathes some life into the notion that that threshold, while high, is not non-existent.

The case of In re: Richmond District Neighborhood Center involved a California non-profit company that operates after-school and summer youth programs.  Complainants worked as teen activity and teen center leaders.  After a staff meeting which was deemed by them to be less than positive, complainants engaged in a (private) Facebook conversation, in which they voiced various concerns about the center’s programs and workplace.   Management got wind of the complaints (not surreptitiously), and immediately advised complainants that they could not continue to work at the program.

Naturally, complainants brought a charge before the NLRB and argued that they were fired for engaging in protected concerted activity.   The NLRB agreed.   A big however, however, in that the NLRB also agreed that the 3rd step in my above analysis trumped the existence of activity that was both concerted and protected.   The NLRB’s Administrative Law Judge ruled:

When an employee is discharged for conduct that is part of the res gestae of protected activities, the question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service. . . .

Callaghan stated that he would have crazy events and not seek permission.  He stated he would play loud music and get artists to place graffiti on the walls.  He stated he would do some “cool shit” and let Respondent figure it out.  Callaghan also stated he would have parties all year and field trips all the time.   Moore stated “when they start loosn kid I aint helpin.”  She stated they would have fun and that she would never be there.  Finally she stated that she would have “clubs” and take the kids.

. . .

Respondent receives grants and other funding from the government and private donors.  It is accountable to the middle schools and high schools that it services.  Respondent believed that the Facebook comments jeopardized the program’s funding and the safety of the youth it serves.  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.

Case dismissed.


Employer Take Away:   What should you as an employer take away from this development?   

However much this case may currently be a needle in the haystack of NLRB decisions, it nevertheless offers some hope that employers may be able to address legitimate business interests without running afoul of the Act.   Take the three-step analysis seriously, as we now know that the NLRB may be more sympathetic to an employer who points to specific threats to the company’s ability to further its business objectives due to an employee’s posts, rather than an employer who merely alleges vague, broad harm from an employee’s social media activity.  Don’t think you can never take adverse action in the face of inappropriate social media activity, but don’t think that you always can.   Properly analyze the facts in each case, and hopefully you will minimize your exposure.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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