Lies, Untruths and Protected Concerted Activity

Consider the following two posts, each made by an employee on his respective personal Facebook page, during non-working time.

• Commenting on the Facebook post by another employee posting about her termination for commenting to a patient about the condition of the employer’s vehicles, William Norvell posted the following: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
• Michael Rice posted the following: “Hey everybody!!!!! Im [f****n] broke down in the same [s***] I was broke in last week because they don’t wantna buy new [s***]!!!! Cha Chinnngggggg chinnng-at Sheetz Convenience Store.”

In Butler Medical Transport (9/4/13) [pdf], an National Labor Relations Board Administrative Law Judge concluded that Norvell’s post was protected concerted activity, while Rice’s post was not.

Norvell’s Facebook posts … was advising … a fellow employee to obtain an attorney/and or contact the Labor Board. What I find particularly important is that Norvell was responding to a post in which Zalewski stated she had been terminated for commenting to a patient about the condition of Respondent’s vehicles. The condition of Respondent’s vehicles was a matter of mutual concern to Respondent’s employees…. Thus, I find his post to be protected….

Respondent’s Chief Operating Officer … testified without contradiction that he reviewed Respondent’s maintenance records and determined that Rice’s vehicle had not broken down when he made this post…. As a result I conclude on the basis of Respondent’s uncontradicted testimony that the allegations made in his Facebook post were maliciously untrue and made with the knowledge that they were false.

Thus, the employer’s termination of Norvell was illegal, while its termination of Rice was perfectly lawful.

What does this case teach us? That there is a line between protected complaining and unprotected lying. Both employees posted about the condition of their employer’s work vehicles. The ALJ protected Norvell’s post because he was voicing a legitimate concern for a coworker, but failed to protect Rice’s post because he was caught lying about his vehicle breaking down. Thus, despite the belief of some that the NLRB is pushing the bounds of what qualifies as protected concerted activity vis-à-vis social media, one universal truth remains the same—liars do not win cases.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com. You can also follow Jon on Twitter @jonhyman.