Recent NLRB Ruling Appears to Employ Shades of Gray (or is that Blue?) to Protectability of Social Media Communications

Recent NLRB Ruling Appears to Employ Shades of Gray (or is that Blue?) to Protectability of Social Media Communications

A employee responded to a supervisor's LinkedIn request with the following joke: "f**ktard." More than a year later, the company discovered the "f**ktard" post while establishing its own corporate LinkedIn site. After the company fired the employee for a violation of its Electronic Communications Policy, the employee filed an unfair labor practice charge with the NLRB. He claimed that his employer did not fire him because of the LinkedIn post, but instead because of a discussion he had with some co-workers two months earlier about the company's overtime practices.

In Schulte, Roth & Zabel (10/13/11) [pdf], the NLRB Office of General Counsel opined that the termination was lawful, and recommended the dismissal of the charge:

Moreover, the LinkedIn posting was not a pretextual reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy-the stated reason for his discharge-was protected by Section 7.

Almost a year ago, the NLRB made a huge splash in the world of social media by issuing a complaint against a Connecticut ambulance company in an eerily similar case-the company fired an employee who called her boss a "d*ck" on her Facebook wall. At the time, many believed that the sky was falling, and that employers would be unable to regulate their employees' use of social media inside and outside the workplace.

Is it possible, however, that the NLRB has been running a well-staged long con? Could the NLRB have enough marketing savvy to latch on to the hot issue invading the workplace, take an extreme position to raise awareness among non-unionized employees that they have rights under the National Labor Relations Act, and then slowly and quietly backtrack into a more reasonable position on a case-by-case basis?

If you compare where we were a year ago to where we are now, this appears to be the case. In American Medical Response, the NLRB argued that calling one's boss a "d*ck" is "not so opprobrious as to lose the protections of the Act" because the "name-calling was not accompanied by any verbal or physical threats." Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the "f**ktard" post. What's the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities? Well played, NLRB.

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