When Employees Go Too Far

December 8, 2014 at 8:47 am Leave a comment

One of my favorite HR issues that I discuss in this blog is the extent to which employers can reprimand employees for comments they make about the workplace on their own Facebook or other social media accounts.  The basic point to keep in mind is that whether you are a unionized or non-unionized workplace, employees have a right to engage in concerted activity in which they come together to discuss issues of concern about their workplace.  They also have the right, of course, to discuss the pros and cons of unionizing.

The National Labor Relations Board (NLRB) has been extremely aggressive in applying concerted activity protections to the social media comments of employees.  The result is that you should move with extra caution, including consulting with your HR attorney, before disciplining an employee for derogatory social media comments about his workplace.

So I was pleasantly surprised on Friday to learn that the NLRB recently issued a decision upholding the right of employers to terminate two employees for insubordination based solely on a Facebook conversation. The case involved two employees who worked at a not-for-profit in the San Francisco area that provided after-school services for kids.  During the incriminating conversation, they asked each other if they were going to be rehired for another school year.  Both got their jobs back, but one of them was going to be demoted.  One of the employees explained how he would organize “crazy events and not seek permission.”  He also stated that he would play loud music, get artists to place graffiti on the walls, and let his not-for-profit employer “figure it out.”  Not to be outdone, the other disgruntled employee stated that when the organization started losing control of kids in their care, she wasn’t going to help.

First, the NLRB agreed that this colorful discussion was concerted activity.   But it also agreed with an earlier ruling that the conduct of the employees was so egregious that they lost the protections of federal law.  The decisive factor was that the insubordinate behavior went beyond hyperbole.  Instead, the Facebook post could reasonably be interpreted as two employees planning acts of insubordination that put the employer’s business at risk.  The not-for-profit center was not required to wait and see if the employees followed through on their plans before taking steps to terminate them.

While the decision is a welcome relief for any employer who wants to use common sense in the workplace, it also underscores just how narrow an employer’s flexibility is when it comes to disciplining employees based on their social media conduct.  The outcome of this case would have been different had the NLRB determined that the employees were just joking.  We may also have seen a different outcome had the employer not been responsible for children.  Still, this decision is a good one to put in your file.

Here is some additional information about the case from Bond, Schoeneck and King’s labor and employment blog, which alerted me to the decision.  In addition, here are some of the previous blogs I’ve done on this subject:

http://newyorksstateofmind.wordpress.com/2011/10/25/when-bad-mouthing-the-boss-is-legally-protected/

http://newyorksstateofmind.wordpress.com/2012/08/09/could-asking-an-employee-to-be-discreet-violate-the-labor-law/

Stronger Than Expected Jobs Report

On Friday, the U.S. Labor Department reported that 322,000 people were hired in November.  In addition, there is some evidence indicating that the economy may be experiencing modest wage growth.  Even if you are not an economist  or an economist want-to-be like your faithful blogger, the jobs report is particularly important to credit unions in the coming months.  The stronger the jobs report, the more likely it is that the Federal Reserve will start raising short term interest rates no later than the middle of next year.  Whether or not this is a good idea is an idea to ponder in a future blog.

Entry filed under: Economy, HR. Tags: , , , .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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