By: Paul Galligan and Howard M. Wexler

The National Labor Relations Board’s focus on all things social media is a topic that we have previously covered on several occasions, most recently here and here. While the Board routinely holds that the NLRA gives employees some leeway for, shall we say, “unprofessional” behavior–including when such behavior takes place on social media–a recent ALJ decision should serve as a welcome sign for employers that there is in fact a line that employees cannot cross—either at the workplace or in cyberspace.

The Decision

In Richmond District Neighborhood Center, 20-CA-091748, two employees had a profanity-laced conversation via Facebook regarding their employer—a non-profit corporation that provides high quality youth, adult, and family programs that address critical community needs. Upon receiving a screenshot of this conversation the decision was made to terminate the two employees, citing concerns based on their Facebook conversation.

The employees alleged that their termination violated the Act because their Facebook conversation constituted protected concerted activity. The ALJ agreed with the employees in that they were engaged in concerted activity given that the crux of this conversation revolved around “their disagreement with management’s running of the teen center.” Id. at 5.

The fact that these statements were deemed concerted did not end the inquiry as the determination had to be made as to whether the employees’ conduct–through their lurid Facebook conversation–was so egregious as to take it outside the protection of the Act, or, of such character as to render the employees unfit for service. While noting that employees are permitted “some leeway for impulsive behavior when engaged in concerted activity” the ALJ nonetheless held that the employees crossed the line since the comments, in addition to being laced with profanities, was damaging to the employer’s reputation. Id. at 6. Specifically, the ALJ held that :

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.

Implications For Employers

This decision drives home the fact that not every social media post is protected by the Act. Where, as here, an employee makes a statement that is so egregious as to cause harm to the employer’s business or is of such character as to render the employee unfit for further service, employers are allowed to take corrective action, up to and including termination. That being said, employers should still tread lightly given that the Board remains on “high alert” regarding all things social media. Exceptions to the ALJ’s decision are due to the NLRB on January 14, 2014. We will keep you updated on any further developments in this very important case.