NLRB “Likes” Flipping Off Your Employer on Facebook

Authored by David P. Frenzia

Apr 14, 2015

Recently, in a divided decision, the National Labor Relations Board (“Board”) found that an employee’s obscene rant on Facebook was protected labor activity. While on a break, the employee posted the following message on his Facebook page: “Bob is such a NASTY MOTHER FU[@%]ER don’t know how to talk to people!!!!!! Fu[@%] his mother and his entire fu[@%]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” The post was visible to the employer on Facebook “friends,” including some coworkers. After learning of the post, the employer conducted an investigation and ultimately discharged the employee.

The Board concluded that, even if the post was vulgar or offensive, it was not so egregious as to lose the protection of the National Labor Relations Act. According to the majority, the employer had tolerated similar language in the workplace. While the post went beyond the workplace, involving not only the manager, but also his family, the Board nonetheless concluded that the conduct was quintessentially protected, concerted activity.

Member Johnson, noting the extreme nature of the epithets and the fact that they were directed not only at the manager, but also his family, would have concluded that the employee’s Facebook posting was unprotected and upheld the employer’s discharge. As Member Johnson explained: “We live and work in a civilized society, or at least that is our claimed aspiration. . . . Reflecting this underlying truth, moreover, legal and ethical obligations make employers responsible for maintaining safe work environments that are free from unlawful harassment.” After observing that personally directed and insulting comments such as those made here typically cause irreparable damage to working relationships, Member Johnson remarked that: “It serves no discernible purpose for the Board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity.”

This decision will undoubtedly make it more difficult for employers to comply with their legal and ethical obligations under Title VII and comparable federal, state, and local laws in the future. Disciplining employees for their activities on Facebook is fraught with danger. Prudent employers should seek advice and counsel before making any disciplinary decisions about employees’ activities on social media that involve or impact the workplace.

If you have any questions about social media issues or any other Labor Relations matter, please do not hesitate to contact David P. Frenzia, R. Michael Lowenbaum, Corey L. Franklin, D. Michael Linihan, Robert S. SeigelWhitney P. Cooney, Jamie M. Westbrook, or Ashley A. Diaz.

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