Legal Briefings: Unfriendly Facebook Comments Can Get You Fired

Ian Callaghan and Kenya Moore worked at Richmond District Neighborhood Center, a teen center in a San Francisco high school.

At a May 2012 staff meeting, Callaghan and Moore expressed dissatisfaction with work issues. On July 30, 2012, they were rehired at the center for a new school year. On Aug. 2, 2012, Callaghan and Moore discussed their return on Facebook boasting plans for insubordination and disruptive workplace conduct. After review of the Facebook items, the center rescinded Callaghan’s and Moore’s offer to return letters.

The National Labor Relations Board’s general counsel argued that theemployees were discharged in violation of the National Labor Relations Act because they had concertedly complained about working conditions. The board, however, found that their discussion put them outside the protection of the NLRA. “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.” Richmond Dist. Neighborhood Ctr., 361 N.L.R.B. No. 74(Oct. 28, 2014).

IMPACT: An employer may be able to terminate employees who threaten insubordination or misconduct at the workplace, even if those employees have engaged in otherwise protected concerted activity, without violating the NLRA. State law should be consulted on whether an employer may review employees’ private social media in determining employment opportunities.