You likely know that the NLRB has a lot to say about employers disciplining employees based on their use of social media (and I’ve blogged about this aplenty, see here). The general rule is that under the NLRA, which applies to all workplaces, unionized or not, employees have the right to engage in “protected concerted activity,” meaning they can basically complain about their working conditions with impunity. The Board has decided many cases finding that employers violated the Act by firing or disciplining employees for complaining about their employer on, for example, Facebook. A case decided last October bucked this trend and upheld an employer’s termination of two employees based on their Facebook rants. The facts were pretty unique (so check with counsel before firing an employee based on his or her conduct on social media).
In Richmond District Neighborhood Center, two employees worked at a teen center catering to high school students. The employees were disgruntled towards their managers and took to Facebook to plot their revenge. They posted about their plans to be insubordinate, including losing kids and damaging the center. They wrote things like “let’s do some cool shit, and let them [management] figure out the money” and “let’s fuck it [the Center] up.” This stated intent to damage the workplace and to work at odds with the center’s mission was enough to take this rant outside the protections of the NLRA. The Board held “the magnitude and detail of insubordinate acts advocated in the posts reasonably gave [the Center] concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take.”