Human Resources News & Insights

NLRB’s latest confusing decision is a boon for companies — here’s why

The National Labor Relations Board (NLRB) just threw a bone to employers about employees’ social media comments. 

After more than three years of decisions from the National Labor Relations Board about employees’ social media usage , HR pros know two things:

  • online conversations between two or more employees about work are usually protected activity under the National Labor Relations Act (NLRA), and
  • mere individual griping about the workplace or colleagues generally isn’t protected.

But this recent case shows that there are times when staffers’ collective conversations aren’t protected under the NLRA.

Job offers were rescinded

Ian Callaghan and Kenya Moore worked for a non-profit called the Richmond District Neighborhood Center, which, among other things, provided after-school activities for local high school students.

In May of 2012, Callaghan, Moore and a number of co-workers met with upper management to voice concerns about their employment. Several months later, Callaghan was sent a rehire letter for his same job. Moore was demoted.

Callaghan and Moore then had a discussion over Facebook about their frustrations with the non-profit’s decision, saying that they planned on not following their supervisors’ directions and the high school kids they oversaw do whatever they wanted.

The next day, a program coordinator at the non-profit took a screenshot of the conversation and sent it to upper management. A director then asked HR not to re-hire Callaghan and Moore.

Soon after, both were fired, and the non-profit sent letters rescinding their job offers. The center cited Moore’s and Callaghan’s Facebook conversation as the reason for the termination and the rescinding of the offers.

The comments could jeopardize funding

Callaghan then filed an unfair labor charge. He claimed that the two men’s conversation was an extension of the conversation many of his colleagues had with upper management in May of 2012.

The administrative law judge said no way. Yes, the men had engaged in concerted activity — but they lost all protections under the NLRA when they made comments saying how they’d subvert the non-profit.

Attorneys at Arent Fox clearly laid out the ALJ’s reasoning:

Richmond argued that the employees’ Facebook comments were detrimental to its eligibility for grants and other funding. The ALJ found evidence to support the employer’s claim. Specifically, he wrote that Callaghan “stated he would do some ‘cool sh*t’ and let [ Richmond] figure it out,” while Moore said “when they start loosin’ kid I ain’t help’n.” The ALJ thus concluded that “the Facebook comments jeopardized the program’s funding and the safety of the youth it serves.” He reasoned that Richmond had the lawful right to conclude that “the Facebook conversations were not protected under the Act and the employees were unfit for further service.” The ALJ therefore recommended that the unfair labor practice charge be dismissed.

The takeaway: Just because two or more employees are chatting about your company online doesn’t guarantee that it’s legal or protected.

The decision is Richmond District Neighborhood Center.

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