Protections of Employees’ Facebook Communications under the First Amendment and the National Labor Relations Act

Recent court decisions suggest that not all employee speech is protected under the First Amendment or labor laws. While “liking” photos and comments on Facebook qualifies as protected speech under the First Amendment, comments that raise a reasonable possibility of disruption of the employer’s activities and legitimate interests are unprotected. The National Labor Relations Board recently confirmed this limit to employees’ freedom of speech under labor laws by holding that certain concerted activity is unprotected by the National Labor Relations Act.

In September of this year, the Fourth Circuit Court of Appeals held that a sheriff could not be terminated for simply “liking” the Facebook page of an opponent of the current sheriff. See Bland v. Roberts. However, substantive communications privately sent on social networks may be unprotected speech. In Gresham v. City of Atlanta et al., for example, the Atlanta Police Department was not held liable when it denied a promotion to a police officer after she criticized a colleague’s performance on Facebook through private messages. In this case, the Eleventh Circuit Court of Appeals held that the post was not protected under the First Amendment because it concerned pubic accusations of unethical conduct, which could jeopardize the good working relationship among officers as well as the department’s esprit de corps.

Shepherd v. McGee, presents another example of unprotected speech. In this case, the U.S. District Court for the District of Oregon determined that a state employer was justified in terminating an employee based on derogatory comments privately posted on her Facebook account, which made her employer and colleagues doubt her ability to perform her job. The plaintiff, who was a child protective services worker for the Oregon Department of Health Services, made derogatory comments about individuals receiving public assistance and had suggested the sterilization of individuals who had their parental custody rights revoked. The court agreed with the defendant’s argument that the employee’s posts irreparably impaired her ability to fulfill her job responsibilities since part of her job duty was to testify in court on child protective services matters and her posts made her impeachable by a defense attorney. Furthermore, because the employee’s speech was not directed to a wide audience and it was not considered to be at the core of the First Amendment, it was unlikely to be protected.

As these cases show, even government employees, who have greater speech protections than private employees, may not be protected against employer action responding to their communications. Similarly, certain communications may fall outside of the protections offered by the National Labor Relations Act (“the Act”). Although the National Labor Relations Board has found offensive language to be protected concerted activity under the Act, it recently issued a decision establishing that such protections are limited. In NLRB v. Richmond District Neighborhood Center, the Board found that the Act does not protect concerted activity that is so egregious as to affect the employer’s business or to make the employee unfit for his or her job. As a result, Administrative Judge Jay R. Pollack ruled that a non-profit organization did not face any consequences for terminating two teenagers after they posted profane remarks regarding their employer.

The case involved two teenagers, Ian Callaghan and Kenya Moore, who were employed by the Richmond District Neighborhood Center, a non-profit corporation which offers youth and family programs addressing specific community needs, including after-school activities for high school students. On May 2012, Callaghan and Moore met with their supervisors, along with other employees, to express their concerns about their employment. In July, Callaghan received a rehire letter as a teen activity leader, while Moore was demoted from his position as teen center program leader and was rehired as a teen activity leader.

On August 2, 2012, the employees engaged in a Facebook conversation only visible to their Facebook friends, in which they complained about the way they were treated by their employer, and stated in profane language that they wanted to “host crazy events” for the children and coordinate lessons for the children to learn how to graffiti the walls. To view the conversation, please see page 3 of the decision.

On August 3, the Center director received screenshots of the employees’ conversation and three days later, the employees were fired. Following his termination, Callaghan filed a charge claiming that the Center engaged in an unfair labor practice. However, Judge Pollack dismissed Callaghan’s charge, rejecting the argument that the Center had violated the Act. The Judge found that Callaghan’s remarks were unprotected due to their egregious nature, which rendered him “unfit for further service.” The Judge also clarified that the employees’ communication of their disagreement with their employer was protected; however, the employees waived such protection once they communicated intent to become uncooperative or insubordinate to the Center. The employer presented compelling arguments that the communication jeopardized the organization’s government and private funding as well as the safety of the youth it seeks to serve. The main concern was that the employees’ comments may have upset the parents of the teens who attended the Center’s programs, as well as the program funders, and they may have made the employees seem untrustworthy.

Many state legislators have attempted to enact laws prohibiting employers from “shoulder surfing” and from conducting investigations on employees’ social network activity under certain circumstances. Delaware, for example, has proposed a “Workplace Privacy Law” that would prohibit employers from investigating their employees’ social media without reasonable suspicion of some conduct that would harm the employer or that would prevent an employee from performing his or her responsibilities.

If you believe you have suffered from employer retaliation as a result of your communications about your employer, please contact The Harman Firm, LLP.