We wrote yesterday about one of the recent Advice Memoranda issued by the National Labor Relations Board on what types of employee Facebook posts will and will not be considered protected concerted activity. 

Today we’re going to discuss a second Memo issued by the NLRB.  In that charge, the employer was a non-profit residential facility for the homeless.  Many of the employer’s clients suffered from mental illness.  The employee posted comments and conversed with a few friends on Facebook during work hours.  The discussion included the following:

  • Employee: Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway.
  • Friend 1: Then who will you tell when you hear the voices?
  • Employee: me, myself and I, one of us had to be right, either way we’ll just pop meds until they go away! Ya baby!
  • Employee: My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh
  • Friend 1: That’s right but, if she gets out of hand, restrain her.
  • Employee: I don’t need to restrain anyone, we have a great rapport, im beginning to detect when people start to decompensate and she is the sweetest, most of our peeps are angels, just a couple got some issues, Im on guard don’t worry bout a thing!
  • Friend 2: I think you’d look cute in a straitjacket, heh heh heh …  

The employee was not Facebook friends with any co-workers.  The employee was, however, “friends” with a former client.  (Does that raise any concerns for you?  It did for me!)  The former client reported the posts to the employer, and the employee was terminated.  The employer stated that its reasons for terminating the employee were that using clients’ illnesses for the employee’s personal amusement did not serve the organization’s mission to protect clients from “stigma”, her comments raised confidentiality concerns, and she had entered the posts on work time.

The NLRB again focused on whether the employee was engaging in a “group activity,” whether she was intending to induce others to engage in group action or whether she was looking to bring group complaints to the attention of management.  The NLRB concluded in this instance there was no evidence of protected concerted activity because the employee did not discuss the posts with other employees and no employees responded to her posts.  The NLRB also noted that her posts did not really mention any terms or conditions of employment.  Once again, however, the NLRB did not address the additional issue of whether the inappropriate comments about clients could have “rendered otherwise protected activity unprotected.”

Takeaways from these NLRB Advice Memoranda?  When faced with knowledge of an inappropriate Facebook post, look to see whether employees are talking to each other when posting about the workplace, or whether the employee is acting alone.  Also note whether the employee is making inappropriate comments about clients or customers.  Those comments could trump any other protected activity.  Finally, look to see whether the employee is merely venting or expressing individual gripes.  In each of these instances, the conduct may not be protected and disciplinary action may be appropriate.  When in doubt, always check with your employment counsel! 

How do these memoranda impact your disciplinary decisions?