On May 16, 2013, the National Labor Relations Board General Counsel released an advice memorandum stating that Skinsmart Dermatology did not violate the National Labor Relations Act (NLRA) when it fired an employee for writing profanities against Skinsmart in a Facebook group message. In re: Tasker Healthcare Group d/b/a Skinsmart Dermatology, Case 04-CA-09422. Section 7 of the NLRA protects workers’ rights to engage in concerted activity, which includes discussing concerns about terms and conditions of employment. However, as the NLRB has noted, personal gripes made by and on behalf of a lone employee do not constitute concerted activity. In a message to 10 current and former employees, the employee at issue stated that she had told a supervisor to “back the freak off” and typed “F**K…FIRE ME… Make my day,” in addition to using other profane language against the company. The NLRB determined that the employee’s comments were “boasting” and “griping” instead of concerted activity and found no evidence that the employee’s co-workers interpreted the postings as an expression of shared concerns over working conditions. The NLRB also found that the comments were not concerted activity because they did not pertain to any mutual workplace concerns and did not discuss possible group action.
In contrast, the NLRB recently found an NLRA violation where an employer fired employees for complaining about the employer on Facebook posts because the posts were concerted activity. Bettie Page Clothing and Vanessa Morris, 259 NLRB No. 96 (2013). Under the Board’s order, the discharged employees were reinstated with back pay. Unlike in Skinsmart, the Facebook posts in Bettie Page concerned terms and conditions of employment in that the employees complained about their store manager, whom they called “immature” and whom they stated made their “lives miserable.” One of the employees also commented that she would bring a California workers’ rights book to work the following day. The employer learned of these posts from a sales employee. Less than a week after the Facebook posts, the employer discharged the participating employees, and less than a month after the posts, another employee was also discharged for writing that she had “been thinking the same thing for quite some time.” In addition to finding that the employees’ posts were protected concerted activity, the Board found that the posts were for the mutual aid and protection of the employees, especially given their discussion about reviewing California’s labor laws and workers’ rights.
MSEC attorneys are here to answer your questions and concerns about the NLRB’s position on Facebook and other social media posts as protected concerted activity and about disciplining employees for using social media.