Not All Facebook Gripes and Complaints Constitute Protected Activity
Author: Beth P. Zoller, XpertHR Legal Editor
June 3, 2013
Even though the Noel Canning decision regarding the NLRB's power to issue decisions is currently on its way to the US Supreme Court, the National Labor Relations Board (NLRB) continues to evaluate social media activity and whether or not such conduct is protected. The NLRB's Office of General Counsel recently released an Advice Memorandum assuring employers that under certain circumstances employee gripes, complaints and personal attacks may not rise to the level of protected concerted activity under Section 7 of the National Labor Relations Act. Tasker Healthcare Group, d/b/a Skinsmart Technology, +2013 NLRB GCM LEXIS 19 (May 8, 2013).
The memo addresses an employee who made comments while participating in a Facebook group message with current and former employees, which initially centered around planning a social event. Later, the conversation turned to the fact that a former employee may return to the company and be made a supervisor. At that point, the employee launched a tirade against her supervisor and stated, "FIRE ME...Make my day," to which no current employees responded. The employer terminated the employee claiming that it was obvious that she was no longer interested in working there. The employer also had concerns about the employee working directly with patients given the employee's feelings about work.
The Advice Memorandum concluded that the employee's Facebook message did not constitute protected activity because it merely expressed an individual gripe and personal contempt toward a returning co-worker and her supervisor rather than shared employee concerns over the terms and conditions of employment. The memo reasoned that comments made solely by and behalf of an employee are not protected. This was clearly distinguishable from situations in which co-workers share concerns over working conditions and engage in concerted activity to initiate group action or where individuals bring group complaints to management's attention. Although there was evidence that two hours after the "FIRE ME" comment, a co-worker chimed in by stating "it's getting bad there..., it's just annoying as hell," the Advice Memorandum determined that these comments were ambiguous and not related to the earlier "FIRE ME" comment and did not relate to shared concerns about working conditions.
Although courts are not bound to defer to the General Counsel's interpretation of the NLRB, the Advice Memorandum reaffirms a general principle that, in order to be considered protected concerted activity, the employee's conduct must relate to shared concerns about the terms and conditions of employment and the employee must be actively engaged with other employees and not acting solely by and on behalf of the employee himself. Individual gripes and personal attacks are generally not protected and employees may be disciplined for complaining about their own workplace issues.
As a result, employers and supervisors should keep this in mind when seeking to address employees who post negative comments about the employer on social media. It is critical that employers and supervisors carefully evaluate social media postings and consider what is said, who it is said to and if, when and how other employees reacted or commented in order to determine whether the conduct may be protected before disciplining or terminating such employees.