We have posted before about the protections afforded to employee social media posts under Section 7 of the National Labor Relations Act. Yesterday, the NLRB made clear that no protection is available to employees who advocate multiple detailed acts of insubordination (rather than engage in a concerted effort to improve or address the terms and conditions of their employment). The employees exchanged multiple Facebook posts in which they detailed all the ways they would break the employer’s rules and act to the detriment of the employer when they returned to work. The Facebook posts were laden with expletives and included statements by the employees about how they would: refuse to obtain permission for organizing events; spend the employer’s money without authorization; teach kids (the constituents served by the employer) to graffiti walls and play music loud; take advantage of the employer by not doing their jobs; neglect their duties; and destroy the employer (“Let’s f*ck it up”).
The NLRB found that the statements were not protected and the employer’s decision to terminate the employees justified. The NLRB explained: “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the [employer] concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take. The [employer] was not obliged to wait for the employees to follow through on the misconduct they advocated.”