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.
Visit the Ohio Employer's Law Blog for more
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