Managers and the Legal Environment 7th Edition by David Madsen, Constance Bagley

Exercise 5

In early 2011, several former and current employees of the GoalPost Sports Bar and Grill discovered that they owed state income taxes for 2010 related to their GoalPost compensation. At least one employee brought the issue to GoalPost's attention and requested that the matter be placed on the agenda for discussion at an upcoming management meeting with employees. Thereafter, a former employee posted on her Facebook page a statement, which included a shorthand expletive, expressing dissatisfaction that she owed money. She also asserted that the GoalPost's owners could not even do paperwork correctly. One current employee, Jeffrey, responded to this posting by clicking "Like." Two other employees commented that they had never owed money before; one of them also referred to telling GoalPost, "We will discuss this at the meeting." Two of GoalPost's customers joined in the conversation, as did another current employee, Brittany. She asserted that she also owed money and referred to one of GoalPost's owners as "[s]uch an asshole." Neither Jeffrey nor Brittany was working on the day the Facebook conversation occurred. When Brittany reported to work the next day, she was told that her employment was terminated due to her Facebook posting and because she was not "loyal enough" to work for GoalPost anymore. When Jeffrey reported to work, he was confronted by GoalPost about the Facebook conversation and was also terminated. Thereafter, Brittany received a letter from GoalPost's attorney stating that legal action would be initiated against her unless she retracted the "defamatory" statements regarding GoalPost and its principals that she had posted on Facebook. Was either Jeffrey or Brittany engaged in protected concerted action under the National Labor Relations Act when they made their Facebook postings? Can GoalPost terminate them? Should it? [Memorandum from Lafe E. Soloman, National Labor Relations Board, Office of the General Counsel, Report of the Acting General Counsel Concerning Social Media Cases Within the Last Year 3 (Aug. 18, 2011), available at http://www.huntonlaborblog.com/uploads/file/NLRB_ Provides_Guidance_For_Social_Media.pdf.]