Some Firings Based on Social Media Use May Be Okay

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In early November, an administrative law judge of the National Labor Relations Board dismissed a complaint filed against an employer, finding that the employer did not violate the National Labor Relations Act by withdrawing rehire offers from two employees' based on their Facebook conversation.

The two employees worked for a non-profit corporation's teen center.  Shortly after the employees were issued rehire letters, they had a Facebook conversation regarding their work at the teen center.  The conversation included a large amount of profanity as well as statements that the employees would not ask permission to engage in certain activities; would do whatever they wanted with the center's funds; and would generally "raise hell."  Another employee saw the conversation and sent screenshots to the director of the teen center.  Letters rescinding the rehire offers were sent to the employees, citing concerns that they would not follow directions and could endanger the children at the teen center.

As in many recent cases, the administrative law judge found that the employees were engaged in "concerted activity" when expressing disagreement with management's running of the teen center.  The judge noted that the Facebook conversation included discussion of (1) how the employees were treated, (2) the employer's failure to respond to certain employee concerns, and (3) the one employee's demotion. 

However, not every instance of concerted activity is protected.  The judge found that the employer could reasonably and lawfully conclude that the employees' actions were not protected.  The judge noted the employer's arguments (1) that its funding from the government and donors could be impacted by the comments, and (2) that the safety of youth served by the teen center could be jeopardized. 

While not every social media-related firing may be unlawful, employers should still be aware of the NLRB's crackdown on social media policies.