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National Labor Relations Board (NLRB) Judge Gives a “Like” to Facebook-Related Termination

National Labor Relations Board (NLRB) Administrative Law Judge Jay R. Pollack recommended the dismissal of a complaint involving the termination of two former employees of the Richmond District Neighborhood Center, a non-profit organization in the San Francisco Bay Area that runs community programs including after-school and summer programs for youth. 

facebook social media NLRB

The decision is all the more surprising because Judge Pollack agreed with the General Counsel that the employees at issue were engaged in protected concerted activity in complaining about their employer on Facebook; yet he found that some of the actions described by the employees (including having “crazy events [without] permission,” “do[ing] cool [expletive] and let[ting] [the employer] figure it out,” “playing loud music and get[ting] graffiti artists to place graffiti on the walls,” and hav[ing] clubs and tak[ing] the kids”) in their Facebook conversations were not protected. Accordingly, the Judge found that the employer could lawfully find that the employees conduct was not protected and that they were unfit for further service.

While this decision shows that not all social-media misconduct must be tolerated by employers, it is important for employers dealing with these types of issues to contact competent labor and employment counsel prior to making any termination decisions involving social media, as defending against an action of this nature before the NLRB can be costly.

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About this Author

Scott Witlin Employment lawyer Barnes Thornburg
Partner

Scott J. Witlin is a partner and the administrator of the Labor & Employment Department in the firm's Los Angeles office. He is Co-Chair of the firm's Wage and Hour Practice Group and a member of the firm's Entertainment, Media and Sports Practice Group.

Scott assists companies in dealing with the challenges of employing workers in California and throughout the U.S. Scott's practice includes both traditional labor and employment law matters, including wage and hour class actions, arbitrations, collective bargaining negotiations, compliance with various guild and union agreements...

310-284-3777
Steve Hernandez, Barnes Thornburg Law Firm, Los Angeles, Labor and Employment Law Attorney
Partner

Steve L. Hernández is a partner in the Los Angeles office of Barnes & Thornburg. A member of the firm’s Labor and Employment Law Department, Mr. Hernández focuses his practice on traditional labor and employment law. Mr. Hernández has extensive experience litigating class action matters.

Mr. Hernández also brings four years of experience as an attorney with Region 21 of the National Labor Relations Board (NLRB) to his practice. While at the NLRB, Mr. Hernández investigated unfair labor practice, litigated unfair labor practice complaints, conducted union representation elections, and presided over NLRB proceedings as a hearing officer.

In the 2018 edition of The Best Lawyers in America, Mr. Hernández was recognized for his work in labor and employment litigation.

Mr. Hernández earned his J.D. from the University of Southern California Law School in 2003. While in law school, Mr. Hernández was a member of the La Raza Law Students Association. In 1999, Mr. Hernández graduated from the University of California, Berkeley with a B.A. in legal studies.

Mr. Hernández is fluent in Spanish and is admitted to practice in state courts of California as well as before the United States District Courts for the Southern, Central, Eastern and Northern Districts of California.

310-284-3775