Expression of “Personal Contempt” in Facebook Message Was Not Protected Concerted Activity

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

By now, employers are aware of a number of “Facebook firing” cases in which individuals who were fired for posting content on Facebook 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). On May 8, 2013, an NLRB Associate Counsel took a different tack when he sent an Advice Memorandum to his Regional Director supporting the actions of a medical group that fired an employee who vented about her workplace in a private group message sent though Facebook. 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 she 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 Tasker Healthcare Group employees, participated in a private Facebook “group message” in which only the invited individuals were able to contribute messages.

The conversation initially focused on a planned social event for the group. Later, however, the charging party, while relating an exchange with a current supervisor, stated that she had implied that the supervisor should “back the freak off.” She followed that posting with one in which she described the employer as “full of [expletive]” and went on to state, “I don’t bite my [tongue] anymore . . . FIRE ME . . . Make my day. . .” Other than the charging party, no other current employee took part took part in that portion of the conversation until two hours later, when someone else stated that the workplace was “annoying as hell” and that “there’s always some dumb [expletive] 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, which 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 expressed concern about her working directly with patients given her feelings about the medical practice.

The charging party claimed that her firing had constituted an unfair labor practice under the NLRA. Later, the NLRB Regional Director asked for input from the Division of Advice. In his Advice Memorandum, the 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 had “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 deciding whether Facebook comments are protected concerted activity, an employer should recognize that there is a line of cases that uses the “inherently concerted” analysis. In those cases, the discussion of certain topics, including, for example, wages, work schedules, and job security, are found to inherently involve “mutual workplace concern.” Since discussing these topics inherently involves mutual workplace concern, the workers involved in the discussion need not contemplate group action for their discussion to be considered concerted activity. Therefore, employers should further analyze online discussions on those topics before taking adverse action against an employee.

Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.


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.

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