Five employees do not like their co-worker. They believe the co-worker is a slacker and fakes illnesses to get out of work. They post derogatory messages on her Facebook page containing obscenities and openly expressing their negative feelings toward her. The victim complains. Following an investigation, the five employees are discharged for harassment under the company’s zero tolerance policy. Any problem with the discharges?
Answer: Most likely. In September, 2011, an administrative law judge of the Board held that the five employees were engaging in concerted protected activity for which they could not be discharged. The judge held that the Facebook postings were no different than “water cooler” talk and could not be interfered with. He held that even though the conversations were not directed to the employer, because they involved terms and conditions of employment they were protected. The judge ordered the employees reinstated. An appeal to the Board is pending.