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."