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Not All Employee Speech on Social Media is Protected

As many Orange County business owners should be aware, the National Labor Relations Board continues to focus on the issue of social media in the workplace. While the NLRB routinely gives employees some leeway for what some might consider “unprofessional” social networking etiquette, a recent pro-employer decision indicates that there is in fact a line in the workplace that employees can cross. This means, that as a California employee, you may be limited in what you can say online.

The recent case involved two employees that had a profanity-laced conversation via Facebook about their employer. After receiving a screenshot of this conversation, the employer, a non-profit organization based in California, made the decision to terminate the two employees, citing concerns based on their Facebook conversation.

The employees fought back, alleging that their termination violated federal law because their Facebook conversation constituted protected concerted activity. Protected concerted activity generally requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. While the administrative law judge agreed with the employees that they were engaged in concerted activity (given that the crux of this conversation revolved around their disagreement with how management ran the business), he held that the employees crossed the line since the comments were damaging to the employer’s reputation.

What can we take away from this NLRB decision? Not every social media post is protected by the Act. In other words, if an employee makes a statement that is so egregious as to cause harm to her employer’s business or is of such character as to render the employee unfit for further service, an employer may be allowed to take corrective action, up to and including termination.

Your specific case should be discussed with an experienced employment lawyer in Orange County. For more information on social media usage by employees in the California workplace, contact the skilled Orange County employment law attorneys at Hardin & Associates today.