Addressing 'Egregious' Online Behavior

While examples have been plentiful of National Labor Relations Board decisions erring on the side of free-speech protections in social-media posts, a new board ruling shows some worker discussions on online platforms may be explicit enough to justify action on an employer's part.

By Kecia Bal

It seems employees-or potential employees-crossed what the National Labor Relations Board deemed a line in the work-related social-media-posts sand, according to a new board decision to dismiss a complaint filed against an after-school teen-activity center in San Francisco.

The case arose after the Richmond District Neighborhood Center rescinded offers of employment to two former employees-activity leaders whose employment agreements were up for renewal-who ranted against the center on one of their Facebook walls. The discussion sparked after the two were asked in a May year-end meeting to write down the pros and cons of working at the center.

The August 2012 Facebook conversation resulted in withdrawal of the rehire letters sent to Ian Callaghan and Kenya Moore. The organization had sent both rehire letters in late July, though Moore's was for a demoted position.

In a decision issued last month, the board said that, while both employees' Facebook statements were similar to the concerted activities that Section 7 of the NLRA aims to protect, the two lost that protection due to "the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts," which the board said were objectively "egregious" and rendered the employees unfit for further service.

The online discussion covered acting and spending money without supervisors' permission and teaching kids to "graffiti up the"

The board decision covers the back-and-forth, such as the following from Callaghan:  "That's why this year all I wanna do is sh** on my own. Have parties all year and not get the office people involved. Just do it and pretend thay [sic] are not there."

Though the ruling might be seen by some as a reprieve for employers, attorney Stephanie Dodge Gournis, a partner at Chicago-based Drinker Biddle & Reath, says it is hardly a major win for employers.

"It shows how far an employee has to go for an employer to be able to act," she says. "The commentary in the case by the board indicates what could have made it a different situation. They made it clear that there weren't comments that would have made the discussion easily explained away as a joke. It couldn't be explained away as something out of context."

While the NLRB has previously defended workers' rights to free speech on social-media platforms, this latest ruling emphasizes that employers need to carefully assess risk when terminating an employee based on social-media discussions-no matter how extreme, rude or discourteous, she says.

Context is important, too, says Larry C. Drapkin, a partner at Mitchell Silberberg & Knupp in Los Angeles.

"In essence, what we're really talking about is the viral water cooler," he says. "Before the days of the Internet, these were the conversations that took place around the water cooler-in symbolic fashion. What these two did, it's hard to even follow. They are talking in today's nomenclature-raise hell, do whatever we want-these are particularly problematic. This is an organization receiving public funding, run at a school and one that had young people who needed proper supervision, and here are two people talking about blowing off what they're supposed to do."

The district contended that because the organization receives grants and funding from the community and is accountable to public schools, the Facebook comments could jeopardize the center's funding and participants' safety, and the board agreed that the employees were unfit for further service.

"That is like saying in a manufacturing plant that we make bolts for space shuttles and we won't pay attention to quality control, and [we will] see if the thing blows up," Drapkin says. "One thing from this decision that is important to take away is to use an objective standard. This case said, 'We're going to say that, under an objective standard, we find this crosses the line.' "

The board focused on specific descriptions of insubordination-and not disparagement of the employer or profanity-says attorney Sheeva Ghassemi-Vanni of the Mountain View, Calif. office of Fenwick & West.

"This was a very clear, although very rare, case where insubordination was outlined," she says. "Most cases won't be as clear-cut as this."

Employers should review social-media policies before taking action in a similar situation, as well as seek legal input, she says.

"Overall, the NLRB tends to side with employees in instances where the conduct is marginal," Ghassemi-Vanni says. "Employers need to be extra, extra careful," she says, adding that the decision may have been different had the Facebook discussion focused on the items raised in the May employee meeting.

Moore did not respond to a request for an interview. Callaghan says the decision was disheartening and he feels that his comments were misinterpreted.

"It was basically hard because-based on the language in a venting session on Facebook-that was my character in [the] heat of the moment," he says, adding that he tried to create engaging programs for teens, such as a healthy cooking program.

"[Facebook] was supposedly a safe space," he says. "We were not talking to supervisors. It was off of work time. There were no high-schoolers present. That my character in that situation is being taken as how I am at work, that's hard."

The employer remains confident in its decision, says center Executive Director Charles Higgins.

"We felt all along that we made the right decision considering the context in which we operate," he says. "We have to adhere to school-district rules, and we have developed leadership within our organization. All employees have the opportunity to manage and direct programs eventually. We felt that this case demonstrated an undermining of leadership that was not healthy for the organization."

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Nov 19, 2014
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