Expression Of Personal Contempt Was Not Protected Activity

By now, employers are aware of a number of “Facebook firing” cases in which individuals who were terminated 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). An NLRB Associate Counsel recently took a different tack when he sent an Advice Memorandum to a Regional Director supporting the actions of a medical group that fired an employee who vented about her workplace in a private group message sent through Facebook. Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222 (May 8, 2013).

In this case, an unnamed charging party was employed by Tasker Healthcare Group, where she performed various office duties with patients and office guests. The 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 participate.

The conversation initially focused on a planned social event for the group. Later, however, the charging party, while recounting an exchange with a current supervisor, stated that she had implied in so many words that the supervisor should “back the freak off.” She followed that post with one in which she described the employer as “full of shit” and went on to state, “I don’t bite my [tongue] anymore . . . FIRE ME . . . Make my day. . .” Other than the charging party, no other employee 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 shit going on.” The conversation ended shortly afterward.

On the following day, one of the members of the group 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 also expressed concern about her working directly with patients given her feelings about the medical practice.

The charging party claimed that her firing constituted an unfair labor practice under the NLRA. Later, the NLRB Regional Director asked for input from the Division of Advice. 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 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 concluded that “the Charging Party’s discharge was not unlawful because her comments were not concerted and, instead, were merely boasting and griping.”