It seems that the NLRB files a complaint every month against an employer claiming an illegal reaction to a Facebook posting, taking the position that social media complaints are protected activity if they touch on topics of employee collective concern. Now, an employer has finally won a social-media-based retaliation case.
Lilli Morse sued JPMorgan Chase saying that it failed to pay her overtime wages. She claimed that she was fired after she complained on her Facebook page about being shorted on wages. JPMorgan Chase managers allegedly told her that her posting motivated the discharge. Ms. Morse claimed it violated the Fair Labor Standards Act’s anti-retaliation provision, which limits retaliation claims to actions taken in retaliation for filing formal complaints, instituting a proceeding, or testifying. Ms. Morse did not contend she filed a complaint — oral, written, or otherwise — with her employer. JPMorgan Chase moved to dismiss the complaint because a Facebook posting “lacks the hallmarks of a serious complaint.”
While the Florida federal judge let the complaint proceed on the overtime claim, the retaliation claim did not stick. A Facebook posting is not a serious complaint. The court ruled there could be no retaliation because there was no filing of a complaint, which is a “serious occasion” not some “triviality.” (Morse v. JP Morgan Chase & Co., Case No. 8:11-CV-779-T-27EAJ (M.D. Fla. June 23, 2011), slip op p. 2). Some degree of formality is required because the employer is entitled to “fair notice” that an employee is in fact making a complaint rather than just “letting off steam.” According to this court, voicing concerns on Facebook falls far short of activity protected by the FLSA. Keep an eye out for this line of reasoning. While this holding is dependent on statutory language unique to the FLSA, some day it might be used to challenge the NLRB’s current position on social media.