Social media permeates society. It was inevitable that the increased use of smart phones and various communications platforms such as Facebook and Twitter would clash with the workplace. We have noted several instances where the NLRB has alleged that employer action in response to social media posts is unlawful, as well as its seemingly endless review of employer policies.
Lately, of course, the NLRB seems to be pulling back a bit on this zealous pursuit of policies and has issued, at various points, Advice Memoranda which provide some guidance as to what is appropriate and what is not appropriate in cases where the government dismisses the charge (Advice keeps confidential those memoranda where a complaint is authorized for obvious reasons). A recently released Advice Memorandum demonstrates, again, that not every social media post by an employee that concerns the workplace is protected by the Act.
Tasker Healthcare Group, 4-CA-094222, Advice Mem. (May 8, 2013) involved a common scene. A group of current and former employees were exchanging private messages on Facebook. The “first hour” of messaging concerned the planning of social events. Then, in response to a discussion about a former employee returning to work, the Charging Party wrote that she told a supervisor to “back the freak off” when the supervisor tried to tell her something. Additionally, Charging Party wrote:
They [the Employer] are full of shit. . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F*CK…. FIRE ME… Make my day.”
Some two hours after this exchange, the Facebook conversation must have waned because Charging Party complained about “feeling deserted.” A current employee responded and made a reference to how “bad” things were at the workplace. The Charging Party employee did not respond to this message.
A different employee who was part of the message string shared the messages with the employer. The employer terminated Charging Party, noting that it was “obvious” the employee was not interested in continuing employment. In particular the employer was concerned how Charging Party’s attitude might affect her patient care responsibilities. Charging Party, of course, felt that her termination was unlawful, asserting that her comments were actually “concerted” activity protected by the Act.
It did not take much for the Division of Advice to direct dismissal of the charge. Advice noted that Charging Party’s conduct was in reality the opposite of concerted activity:
In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions. Specifically, her comments bemoaned the return of a former employee and stated that her supervisor tried to tell her something and she told her to ‘back the freak off’; that the employer was ‘full of shit’; and that the Employer should ‘FIRE ME… Make my day.” These comments merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual ‘griping,’ and boasting about how she was not afraid to say what she wished at work.
The Division of Advice found it significant that there was no back and forth among employees or other evidence that Charging Party’s statements were “an expression of shared concerns.”
The result seems obvious: an employer can lawfully terminate an employee who openly expresses disdain for the workplace as well as her supervisor. The case is nonetheless significant. It shows the agency is still sending to headquarters every issue that involves social media for additional scrutiny, no matter how far removed from the Act. While there is no new law being applied, the government is certainly looking very closely at the context of the comments made by the employee. The case also demonstrates how the attention given the issue of social media in the workplace results in charges being brought asserting conduct is “protected concerted activity” even when there is no mention of a union and, as is evident here, involves little more than an (hours long) online discussion among employees, some of which referenced the workplace.