NLRB Makes Friendly Facebook Ruling for Employers

Two employees who conspired together to commit insubordination at work were properly terminated because their actions, while relating to terms and conditions of employment, were so egregious that they lost the protection of Section 7 of the National Labor Relations Act. Specifically, two camp-counselor type employees planned at length how they would replace the “happy-friendly-middle school campy” atmosphere activities with ones that would undermine the purpose and goals of the program.

In a decision that provides protection for employers to discipline and/or discharge employees who plan to act insubordinately – as opposed to requiring employers to wait patiently until the actual insubordination occurs – the Board found that the employees’ “pervasive advocacy of insubordination in the Facebook posts, composed of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protections. The acts specific to this ruling, i.e. teaching kids “how to graffiti up the walls,” are illegal and possibly rise above standard insubordination standards. Therefore, companies should relish this ruling, but cautiously understand that it does not give employers carte blanche authority to fire employees for planning to break company rules.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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