Are Employee’s Social Media Discussions Protected?

As we’ve reported, the National Labor Relations Board (“NLRB”) continues to take an aggressive stance on regulating employment decisions based on employee social media postings. Contrary to the recent trend of broadly construing employee social media postings as covered under protected activity, the NLRB reversed course and recently ruled in favor of an employer after terminating an employee based upon what it believed was an improper Facebook group message post.

In the case, an employee worked at a small medical office performing various office duties for her employer. The employee at issue in the case, along with nine other individuals who were comprised of both former and current employees, took to a private group chat on Facebook to organize a social outing. After briefly planning the social event, the subject quickly changed after the employee mentioned that another former employee may be returning to the company as a supervisor. This led to the employee beginning an attack on her current supervisor claiming that her supervisor "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." The employee’s rant did not stop there as she began using profanity and stated “FIRE ME …Make my day.” Other than one other current employee stating that the employee’s comments made her laugh, no other current employees took part in this part of the discussion.

To no surprise, one of the current employees on the group chat showed this discussion to their employer. The employer called the disgruntled employee’s bluff and ended up firing her as it was clear to the employer that she was no longer interested in working for the company.  The terminated employee responded by filing an NLRA charge against the company claiming that her Facebook comments constituted protected concerted activity.

The NLRB found that the employee’s conduct on the Facebook group message did not constitute protected activity as the postings did not involve shared employee concerns over terms and conditions ofemployment. The NLRB largely focused on the test for “concert” and whether the employee is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Ultimately, the NLRB concluded that the terminated employee’s “comments merely expressed an individual gripe rather than any shared concerns about working conditions,” and therefore, the terminated employee’s charge should be dropped.

This is a big victory for employers as up until this opinion, the NLRB has continuously taken a very aggressive stance against employers on social media policies and terminations based on violations thereof. When making these termination decisions related to online postings, employers will want to consider what was said, by whom, and who responded in order to determine whether such conduct would be considered “protected concerted activity.” Though this opinion does give employers comfort if and when it decides to make a termination decision based on improper Facebook postings, it is always critical for you first to discuss these decisions with an experienced employment attorney.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Nick can be reached at NJohnson@BerenzweigLaw.com.