With the increasing prominence of social media, employers have been rightfully concerned about the impact of employees' out-of-work statements on the work place—particularly when it comes to the reputation of the employer. In the last few years, the National Labor Relations Board has held that even offensive language can be protected concerted activity [See previous Orrick blog postings on this topic from September 25, 2012 and May 16, 2013]. However, apparently there is a limit: an administrative law judge held last week that the expletive-laden Facebook posts of two youth center employees crossed a line.
Ian Callaghan was employed as a teen activity leader by the Richmond District Neighborhood Center ("the Center"), a non-profit corporation that develops and provides high quality youth and family programs that address critical community needs.
On August 2, 2012, Callaghan and another employee, Kenya Moore, engaged in a conversation through Facebook. In their conversation, visible to only their Facebook friends and not the public at large, the two employees complained about their treatment by Richmond. The statements made by Callaghan in the conversation included:
- "I don't feel like being their b*tch and making it all happy-friendly middle school campy. Let's do some cool sh*t, and let them figure out the money. No more Sean. Let's f*ck it up."
- "You right. They don't appreciate sh*t."
- "[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!"
- "[W]on't be there Wednesday. I'm outta town. But I'll be back to raise hell wit ya. Don't worry. Whatever happens I got your back too."
On August 3, 2012 screenshots were sent of the conversation of Callaghan and Moore to a Center director, and three days later, Callaghan and Moore were terminated. Callaghan then filed a charge alleging that he was terminated in violation of the National Labor Relations Act ("the Act"). After hearing, in a decision dated November 5, 2013, an administrative law judge ruled that although the remarks of Callaghan and Moore voicing their disagreement with the management of the teen center on Facebook were concerted activity, the remarks were not protected by the Act because the conduct was so egregious as to take it outside of the protections of the Act and was of such character as to render the employees unfit for further service. The judge focused on the fact Callaghan and Moore's comments jeopardized the Center's funding from the government and private donors and the safety of the youth it serves. The judge's decision is available here.
The takeaway from this decision for employers is that concerted activity is not always protected by the Act, whether made in person or through electronic means. Where employees' concerted activity is so egregious as to have demonstrable effect on the employer's business or is of such character as to render the employee unfit for further service, the Act offers no protection.
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