Skinsmart Dermatology Avoids A Legal Blemish Over Facebook Posting


The "Facebook Firing" cases continue with the NLRB deciding more often than not that employees fired for Facebook postings engaged in "protected concerted activity" under the National Labor Relations Act ("NLRA") and are entitled to reinstatement.  

However, a break from the typical outcome occurred in May, 2013, when an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director upholding the firing of an employee who had made derogatory remarks about her job in a group message on Facebook. In Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222 (May 8, 2013), the group of ten individuals included seven current and three former Skinsmart employees.

Initially, the postings involved a social event. Then, one of the current employees commented on a conversation she had with a supervisor where she told the latter to "back the freak off." The employee went on to say that certain supervisors "are full of shit" and "FIRE ME . . . Make my day. . . .". No other current employees participated in this portion of the conversation. 

The next day one of the group's other current employees showed the conversation to the employer. Skinsmart fired the employee who made the derogatory comments. Following the termination, the employee filed an unfair labor charge, claiming her termination violated federal law. As expressed by the Associate Counsel: "[t]he Board's test for concert is whether the activity is engaged 'in with or on the authority of other employees, and not solely by and on behalf of the employee himself." In reviewing the claim, an Associate Counsel issued an Advice Opinion in which he characterized the employee's actions as "merely express[ing] an individual gripe" – as opposed to conveying "shared concerns."

Note that while the outcome in Skinsmart was favorable to the employer, it was because the employee's postings failed to include communications showing any "shared employee concerns," such as wages, work schedules, and or "other terms and conditions of employment."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akerman LLP - HR Defense | Attorney Advertising

Written by:


Akerman LLP - HR Defense on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.