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When Complaining About Your Job on Facebook Can Get You Fired
Employment law blogs, including Porter Wright's Employer Law Report and Ogletree Deakins' Employment Law Matters, have been discussing an Advice Memorandum recently released by the National Labor Relations Board that addresses when an employee may be fired over negative comments about an employer on social media, and when such messages constitute "protected concerted activity" under the National Labor Relations Act.
The case involves private Facebook group messages written between current and former employees of Tasker Healthcare Group (doing business as Skinsmart Dermatology). During a group message discussion initiated to organize a social event, one employee took the opportunity to express some dissatisfaction with her supervisor and with the company in general.
Among other comments, the employee (who the NLRB memo refers to as the Charging Party) wrote that the company is "full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK … FIRE ME … MAKE my day …" No other current employees participated in that part of the conversation, but later on, one employee did write that "it's getting bad" at Tasker and that "it's just annoying as hell. It's always some dumb shit going on."
The morning after the exchange, one of the employees who was included in the message string but remained silent during the discussion showed the Facebook exchange to the employer. As Sara Hutchins Jodka writes in the Employer Law Report post, Tasker "took Charging Party up on her request to be fired," saying it was clear that she no longer cared to work there, "and indeed made her day."
The employee filed a charge claiming that her termination violated a provision of the National Labor Relations Act that protects concerted activity on behalf of employees to improve wages or working conditions. In the Advice Memorandum, NLRB Associate General Counsel Barry J. Kearney recommended dismissal of the charge, finding that the employee's comments "merely expressed an individual gripe rather than any shared concerns about working conditions."
The memo stated that the employee's comments "merely reflected her personal contempt," and that there was no evidence that her co-workers interpreted them as an expression of shared concerns. The later posting from the co-worker about the employer being "annoying as hell" was found to be "ambiguous" and unrelated to the fired employee's earlier comments.
On Barnes & Thornburg's Currents blog, Doug Oldham contrasts the Tasker case with an April NLRB decision holding that clothing manufacturer Bettie Page Clothing unlawfully fired three workers based on a conversation on Facebook. In that case, the workers criticized their supervisor in a series of Facebook posts and discussed bringing a book on worker's rights to the store. The NLRB heldthat the posts constituted protected concerted activity, since they "were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns."
The takeaway from the Tasker case? Attorney-bloggers examining the issue warn that employers should still be wary about firing employees based on their online complaints. Jodka writes on the Employer Law Report that the case "demonstrates that even when an employee's comments on social media are so outrageous that they literally ask the employer to fire the employee, the employer must still do some analysis to determine whether the comments may constitute concerted protected activity under the NLRA."
This article originally appeared in Law.com Legal Blog Watch.