Employment law blogs, including Porter Wright’s Employer Law Report and Ogletree Deakins’ Employment Law Matters, have been discussing a recently released National Labor Relations Board memorandum that addresses when an employee may be fired over negative comments about an employer on social media.
The case involves Facebook group messages written between current and former employees of Tasker Healthcare Group. During a group message discussion initiated to organize a social event, one employee took the opportunity to express dissatisfaction with her supervisor and with the company in general.
The employee (who the NLRB memo refers to as the Charging Party) wrote that the company is “full of sh– … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, … FIRE ME … MAKE my day …” Later, one other employee wrote that “it’s getting bad” at Tasker and that “it’s just annoying as hell.”
The morning after the exchange, one of the employees included in the message string 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.
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. But in an 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.”
Kearney added 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.
The takeaway? Employers should still be wary about firing employees based on 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.”•