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NLRB OKs Termination of 2 Employees Venting on Social Media

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By William Peacock, Esq. on November 05, 2014 11:33 AM

Ian Callaghan and Kenya Moore worked at a teen center at a San Francisco high school. During the school year, supervisors asked employees to list pros and cons about working there. Things reportedly got tense, however, when more cons than pros were listed. During the summer, Callaghan and Moore continued to work for the teen center in different capacities. When the school year arrived, both were rehired, but Moore was demoted, allegedly because of poor performance over the summer.

The two aired their grievances on Facebook (with a former student joining in), making references to losing kids, teaching kids graffiti, and throwing parties. Their conversation was shared with their employer by a coworker. They were subsequently terminated.

Venting or plotting? From an outside perspective, it can sometimes be hard to tell. And though the NLRB has been especially protective of employees' concerted speech on social media about working conditions, this represents an extreme case on the other end of the spectrum: the (possibly) plotting employees who, according to a recent NLRB ruling, can be fired for their online speech.

The Conversation

This is a bit of a lengthy conversation, but we're including the entirety of it because it shows that one's conduct really needs to be egregious to fall out of the NLRB's Section 7 protection for social media speech about workplace conditions. (This is the semi-cleaned up version, grammatically speaking, used by the ALJ. Profanities have been edited.)

Moore: U goin' back or no??

Callaghan: I'll be back, but only if you and I are going to be ordering s---, having crazy events at the Beacon all the time. I don't want to ask permission, I just want to be LIVE. You down?

Moore: I'm goin' to be a activity leader I'm not doing the t.c. [sic] let them figure it out and they start loosin' kids I ain't help'n HAHA

Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don't feel like being their b---- and making it all happyfriendly middle school campy. Let's do some cool s---, and let them figure out the money. No more Sean. Let's f--- it up. I would hate to be the person taking your old job.

Moore: I'm glad I'm done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho [sic] shawn gone its still hella stuck up ppl there that don't appreciate nothing.

Callaghan: You right. They don't appreciate s---. That's why this year all I wanna do is s--- on my own. Have parties all year and not get the office people involved. Just do it and pretend thay [sic] are not there. I'm glad you aren't doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help.

Moore: They gone be mad cuz on Wednesday I'm goin' there add tell them my title is ACTIVITY LEADER don't ask me nothing about the teen center HAHA we gone have hella clubs and take the kids

Callaghan: hahaha! F--- em. Field trips all the time to wherever the f--- we want!

Moore: U f---'n right see you Wednesday

Callaghan: I won'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.

Chloe Garabato [a Former Student]: WTF!! As soon as I leave you guys want to hella fun as s--- I can't be there!! HELLA MEAN!!!

Moore: U can come why you can't

Chloe Garabato: Because I'll have school. And I'm trying to work during school too. If you can get me a job working with you guys, I'm there for sure!!! Aha.

Moore: You see what we go thru we there for the kids I don't know about everybody else

Callaghan: It's all for the kids. You gotta come in and visit. Everyone is invited.

The Standard

As the ALJ stated: "The issue is whether the remarks of Callaghan and Moore were protected under the Act. When an employee is discharged for conduct that is part of the res gestae of protected activities, the question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service."

The NLRB upheld that standard, and the ALJ's ruling against the two employees.

"We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act's protection and render Callaghan and Moore unfit for further service," the opinion stated.

Where Is the Line?

Off the top of our heads, we can now think of two cases where the NLRB has said that employees have gone too far. There is this case, of course, and previously, there was a car dealership employee who posted images of a car accident, mocking his dealership. The NLRB upheld his termination because his comments damaged the business and had little, if anything, to do with workplace conditions.

Conversely, there's now a long line of cases where the NLRB has held that employees were wrongfully terminated for complaining about work online. The most recent was Triple Play Sports Bar, where employees were fired after complaining online about their boss miscalculating their taxes.

Together, the opinions have delineated two classes of online speech: speech about working conditions, which is protected, and speech that is clearly meant to hurt the company, which may be protected, depending on how related it is to working conditions and how egregious the speech actually is.

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