Unfashionable Firings: Judge Orders Clothing Store to Rehire Employees Who Lost Their Jobs Based on Facebook Posts.
Can you fire an employee who post on Facebook: “Hey dudes, it’s totally cool, tomorrow, I’m bringing aCaliforniaworkers rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation?” The employee was one of three workers who had been complaining to store management that the store should shut down an hour early so employees could avoid unsavory street people when exiting the store late at night. After a heated exchange with store management over the subject, three employees complained about the manager on Facebook and posted about brining the “Californiaworkers rights book,” which the employee did the next day.
According to Administrative Law Judge William G. Kocol of the National Labor Relations Board, clothing retailer Bettie Page Clothing committed an unfair labor practice when it fired these three employees for their Facebook posts. Bettie Paige runs a women’s clothing store in the Haight-Ashburydistrict of San Francisco. The case is Design Technology Group, LLC d/b/a Bettie Page Clothing, Case No. 20-CA-35511 (April 30, 2012).
Unfortunately for the employer, the Judge was confronted with inconsistencies about why the employees were discharged, which resulted in his determination that the real reason was Bettie Page’s interference with the employees’ Section 7 rights under the National Labor Relations Act to engage in concerted action to improve their working conditions. After the manager received the Facebook posts, she terminated the employees because “things were not working out.” The employer attempted to explain that two of the employees had been insubordinate before the Facebook postings and one was seeking new employment by using Bettie Page’s computer. The lack of documentation, among other things, allowed the Judge to poke holes in the employer’s explanation. According to the Judge, “I conclude that Bettie Page’s . . . explanations concerning the reasons for the discharges . . . morphed as needed based on the exigencies of the situation.” The Judge then ordered Bettie Page to reinstate the three employees and to make them whole for loss of earnings and benefits. The employer is contemplating whether to appeal.