When Private Facebook Posts Come Back to Haunt You

To paraphrase that post-“Black Album” Metallica song (and a pretty tired proverb at that) – be careful what you wish for ’cause you just might get it.  I came across this gem recently courtesy of Eric Meyer’s (of Dilworth Paxson, LLP) informative and humorous employment blog: http://www.theemployerhandbook.com/about_me.html

The National Labor Relations Board (NLRB) recently issued an Advice Memorandum (see link below) recommending dismissal of an employee’s claim that her employer violated the National Labor Relations Act’s (NLRA) protected “concerted activity” sections when the employer fired the employee for making disparaging comments about the employer on Facebook.

The employee, who worked for Skinsmart – a dermatology clinic – was on a private Facebook “group message” with several former and current Skinsmar employees.  During the course of the exchange, the employee said, among other things, that a supervisor should “back the freak off”, the employer is “full of shit” and (the killer) “FIRE ME…..Make my day.”  The next day, one of the employees who participated in the Facebook exchange, showed the comments to the employer (with friends like these….).  The employer wasn’t amused and summarily fired the Facebooking (now former) employee.  (Somewhere Monsieur Eastwood is smiling.)  The employee, apparently having a change of heart, then lodged an unfair labor practice charge with the NLRB.

In recommending dismissal of the employee’s claim, the NLRB found that the employee’s inflammatory comments were akin to “griping” and were not protected group activity.  The NLRA specifically protects employees’ rights to organize and engage in concerted activity – so long as the activity involves shared concerns about working conditions or where the activity takes place in the context of preparing for group action or bringing group complaints to management’s attention.  Meyers Industries, 281 NLRB 882 (1986), NLRA §§ 7, 8(a)(1).  Here, the NLRB ruled that the employee’s request that her employer “fire her” and “make my day” was nothing more than unprotected individual griping and simply “reflected [the employee’s] personal contempt for her [employer].”  See Advice Memorandum, p. 3.

The take-away: First – be careful what you post on Facebook: you never know who is watching or who may “share” your impulsive (or not) posts; Second – if you are going to participate in a group message with current and/or former employees, your comments will only be protected if they truly involve working conditions or truly group complaints to be expressed to management; and Third – if you’re going to trash your employer, do it off-line.

Reference:

http://www.employerlaborrelations.com/files/2013/05/Tasker-Healthcare-Group-dba-Skinsmart-Dermatology.pdf