Many employers would consider a post on social media referring to a management employee using profanity to be insubordination. Nonetheless, a recent decision from the National Labor Relations Board (“NLRB”) has held that under certain circumstances such conduct may be protected concerted activity. The facts giving rise to this decision were that a catering company manager “scolded” servers during an event telling them to move circulate and move. Later in his shift, one employee posted on social media indicating that this manager did not know how to speak to employees. However, in that post, the employee used four letter words attacking not only the manager, but his family. After investigation, the employer terminated the employee for this social media posting.
Employees, whether unionized or non-unionized, have protection under Section 7 of the National Labor Relations Act (“NLRA”) when engaging in protected concerted activity. Under the facts of this case, the NLRB held the postings to be protected. Specifically, the Board determined that this employee’s postings were made on behalf of himself and other employees (concerted activity) and “were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment.” The employer has appealed this decision to the Second Circuit Court of Appeals, whose decision will be persuasive but not controlling on federal courts in Florida and the Eleventh Circuit.
This is a good reminder to employers that under the current NLRB, even improper conduct by an employee can be protected under the Act if it is tangentially related to concerted activity where employees are trying to protest current working conditions or seek better working conditions. If you have questions about this type of employment matter, please call our office at 1-772-465-5111 or email us here.
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