Expression of "personal contempt" in Facebook group message did not constitute protected concerted activity.
By now, most employers are aware of a number of “Facebook Firing” cases, in which individuals who were fired for Facebook postings have been reinstated after the National Labor Relations Board (NLRB) found the postings to have been “protected concerted activity” under the National Labor Relations Act (NLRA). However, on May 8, 2013, an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director, supporting the actions of a medical group that fired an employee after her postings to a private Facebook group message. Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222, May 8, 2013.
In that case, an unnamed Charging Party was employed by Tasker Healthcare Group, which was doing business as Skinsmart Dermatology, where the Charging Party performed various office duties with patients and office guests. On November 12, 2012, that employee, along with nine other individuals, the majority of whom were co-employees, participated in a private Facebook “group message” in which only the invited individuals were able to contribute postings.
The initial “conversation” focused on a planned social event for the group. Then, at some point, the Charging Party related an exchange with a current supervisor in which Charging Party had told the supervisor to “back the freak off.” She followed that posting with one in which she described the employer as “full of shit” and went on to state “FIRE ME . . . make my day. . . .” Other than Charging Party, no other current employee took part took part in this portion of the conversation until two hours later, when someone stated that the workplace was “annoying as hell” and that “there’s always some dumb shit going on.” No other employee responded and the conversation ended shortly afterward.
On the following day, one of the non-posting employees showed the message string to the employer, who then fired the Charging Party. In addition to saying that it was obvious that the Charging Party was not interested in continuing her employment, the employer also stated that there was a concern about having her work directly with patients, given her feelings about the medical practice.
Following the Charging Party’s claim that her firing was an unfair labor practice under the NLRA, the NLRB Regional Director asked for input from the Division of Advice. In his Advice Memorandum, a Division of Advice Associate Counsel acknowledged that the NLRA protects individual employees who engage in concerted activity, and further acknowledged that such activity can be undertaken by a single employee who seeks to initiate group action, or who brings group complaints to an employer. However, he then pointed out that in this case, the Charging Party “merely expressed an individual gripe” rather than engaging in a discussion of shared concerns. He went on to characterize the Facebook comments as “personal contempt” rather than discussion of the terms and conditions of employment. Based on that, the Associate Counsel specifically determined that “the Charging Party’s discharge was not unlawful because her comments were not concerted and, instead, were merely boasting and griping.”
Before making its own determination regarding whether Facebook comments are protected concerted activity, however, an employer should recognize that there is a line of cases that use the “inherently concerted” analysis. In those cases, the discussion of certain topics – including wages, work schedules, and job security – are found to involve “mutual workplace concern” and, therefore, contemplation of group action is not necessary in order to find concerted activity. Therefore, if on-line discussions include those topics, further analysis should be done before adverse action is taken against the employee.