A NLRB judge recently ruled that a non-profit’s discharge of two employees for having an inappropriate conversation on Facebook about the non-profit did not run afoul of the National Labor Relations Act. Click here for copy of the case. On July 30, 2012, the non-profit, a corporation that ran an after school teen center in San Francisco, sent the two employees, Ian Callaghan and Kenya Moore, rehire letters for the position of teen activity leader. On August 2, 2012, Moore contacted Callaghan on Facebook to see if he was going to take the job and the two began complaining about the after school teen center. Among other inappropriate comments, Callaghan said that he wanted to have “crazy events”, teach kids how to graffiti up the walls, “do some cool shit” and “fuck it up.” Moore said she was would “never be there” and when “they start loosin’ kids I ain’t help’n”. On August 3, 2012, another employee sent screenshots of the conversation to the director, who in turn sent an e-mail to human resources requesting that Callaghan and Moore not be rehired. Thereafter, the non-profit withdrew Callaghan’s and Moore’s rehire letters on August 13, 2012 citing concerns based on their Facebook conversation that the employees would not follow the directions of their manager and could endanger the youth.
General counsel for the National Labor Relations Board said that Moore and Callaghan were discharged for engaging in protected concerted activities arguing that the conversation was a continuation of complaints made during a May 2012 staff meeting where employees were told to write down the pros and cons of working for the non-profit. The non-profit argued that the Facebook conversation was detrimental to its ability to get grants and other funding because the employees said that they would have crazy events, not seek permission for the events and not be there to supervise the teens. The NLRB judge agreed with the non-profit and dismissed the case finding that although the employees had engaged in concerted activity, “the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service.”
The takeaway: Employers may be able to discharge an employee for engaging in concerted activity if the conduct is deliberately or recklessly egregious or of such character as to render the employee unfit for service. However, this is a pretty high standard and will not apply to all conversations that disparage a company and/or its activities.
