Quirky Question #206, NLRB

 Question:

I discovered one of my employees announced on Facebook that our company is a horrible place to work and she is just “coasting” and waiting to be fired.  Normally, I would just fire her, but our CFO is worried that internet communications between employees in social media can be “protected.”    What is the recent law?

Answer: By  Gabrielle Wirth

Gabrielle Wirth

Gabrielle Wirth

You are correct that the National Labor Relations Board (“NLRB”) has recently filed charges alleging a violation of Section 8(a)(1) of the National Labor Relations Act against employers who discipline employees for derogatory statements about their employer made in chat rooms, Facebook, blogs and the like.  But not every statement is protected. Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in section 7,” which includes the rights of employees to engage in other concerted activities for mutual aid or protection.  The NLRB’s test for whether such statements in social media are protected concerted activity is whether the activity is engaged “in, with or on behalf of other employees, and not solely by and on behalf of the employee himself.”  Protected concerted activity includes communications where individual employees are seeking to “initiate or to induce or to prepare for group action” or bring “truly group complaints.”

A recent Advice Memorandum of the NLRB deals with circumstances very similar to the facts you outline above. A group of current and former employees of Tasker Healthcare Group, a medical office with approximately 19 employees, were exchanging private messages on Facebook. Facebook allows users to send messages to a group of people using the site’s internal email messaging system and only invited individuals can view and contribute to the discussion.  Initially, the messaging concerned the planning of social events.  Then, the employee wrote that she told a supervisor to “back the freak off” when the supervisor tried to tell her something.

Then she added:

They [the Employer] are full of shit. They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F*CK….FIRE ME…Make my day.”

No current employees responded to the exchange.  Two hours after this exchange, on Facebook the same individual complained about “feeling deserted.” One current employee responded and made reference to how “bad” things were at the workplace, that it was “annoying as hell” and “always some dumb sh*t going on.”  Ms. Fire Me did not respond.

Another employee who was part of the message string shared the messages with the employer.  The employer obliged Ms. Fire Me, noting that it was “obvious” she was not interested in continuing employment.  In particular the employer was concerned how her attitude might affect her patient care responsibilities. Ms. Fire Me, of course, filed a charge with the NLRB alleging that her termination was unlawful, asserting that her comments were actually “concerted” activity protected by the Act and therefore her termination was unlawful under Section 8(a)(1).

On May 8, 2013, the Division of Advice directed dismissal of the charge. The Advice Memorandum noted that Charging Party’s conduct was in reality the opposite of concerted activity:

“In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions.  Specifically, her comments bemoaned the return of a former employee and stated that her supervisor tried to tell her something and she told her supervisor to ‘back the freak off’; that the employer was ‘full of sh*t’; and that the Employer should ‘FIRE ME…Make my day.”  These comments merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment.  Thus, although her comments referenced her situation at work, they amounted to nothing more than individual “griping,” and boasting about how she was not afraid to say what she wished at work.”  The Division of Advice noted that there was no other employee communication suggesting coworkers interpreted the postings as “an expression of shared concerns,” as opposed to a personal gripe.

Your situation seems to be almost identical to the Tasker facts. However, part of the NLRB’s rationale here was that other employees did not view the posting as collective action about shared concerns but rather just personal gripes. Therefore, you need to do further investigation before you can determine if a termination can be challenged as a violation of the NLRB.  Additionally, you haven’t noted what state you are in, but many states protect “off duty legal activities” and you should check with legal counsel to determine if the statements might be protected on this alternate basis.

Gabrielle Wirth

Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience in a broad range of employment disputes includes wage and hour, whistleblower, wrongful termination, discrimination, harassment, retaliation, breach of contract, and trade secret/noncompetition cases. She also represents employers before a wide variety of state and federal agencies including the EEOC, OFCCP, state human rights agencies, the Labor Commission, the Employment Development Department and OSHA.

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