NLRB Upholds Dismissal After Employee Posted “Fire Me… Make My Day” On Facebook

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trumpfiredBy IT-Lex Intern Nicole Sellers (LinkedIn)

We have blogged about the National Labor Relations Board fairly often lately; specifically the Board’s decisions regarding the firing of employees due to comments made on social media. In the previous instances , the Board found firings due to comments made by employees on social media improper under the National Labor Relations Act. But in a development that is sure to have us carefully wording the next status update, a recent decision was handed down where the comments the employee made on Facebook were not protected under the act.

The story goes as follows: The employee was employed by Tasker Healthcare Group DBA Skinsmart Dermatology, and performed various office duties dealing with patients and office guests. In November 2012, the employee and nine other individuals from the office participated in a private Facebook group message. We’ll let the NLRB opinion describe the facts from here:

The Charging Party then mentioned a current supervisor who “tried to tell [the Charging Party] something today and [the Charging Party] said aren’t you the supervisor for mind and body … in other words back the freak off . . .” After a few minutes of banter with former employees, the Charging Party stated, “They [the Employer] are full of shit … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK. ..FIRE ME. … Make my day. . .” Other than the Charging Party, no current employees took part in this portion of the conversation.

As you may have already guessed by now, that comment got the employee in pretty hot water, which resulted in the employer taking up the offer, and terminating employment. The employer stated that it was “obvious” that the employee was no longer interested in working there. The case was submitted to the NLRB for advice as to whether the employer violated section 8(a)(1) of the Act when it discharged the employee.

Contrary to the previous decisions we’ve looked at, the NLRB decided that the employees’ Facebook messages did not constitute protected concerted activity, as the comments did not involve shared employee concerns over terms and conditions of employment. The test that the NLRB applies to determine if an activity constitutes concerted activity is whether the activity is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself”. In other words, if the activity is seeking to initiate or induce a group action (for example, talk of unionizing), then the activity is considered concerted and therefore is protected.

In this case the employee was expressing a concern that was not explicitly shared by the rest of staff, and there was no connection between what the employee stated and the feelings of any co-workers pertaining to shared concerns related to working conditions.  Accordingly the board ultimately dismissed the charge brought by the employee.

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