Fine Distinctions at the NLRB

I’m not sure if this falls into the category of hair splitting, but it does illustrate the tough decisions that the NLRB needs to make in the social media world.  I am referring to a recent “Advice Memorandum” issued by the NLRB.  At issue was whether Skinsmart Dermatology committed an unfair labor practice when it fired an employee based on that employee’s Facebook postings.

In late 2012, the employee (who is referred to in the memo as “the charging party”) and nine other individuals participated in a Facebook “group message” to plan a social event.  Of the 10 folks invited to participate in the group message, seven were current employees and three were former employees.  Four current employees actually participated.   Apparently the first hour concerned the plans for the event, but thereafter, the subject turned to a former employee who was returning to Skinsmart.  This apparently got under the charging party’s skin, which led to her making this comment: “They [the Employer] are full of s**t … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F**K…FIRE ME. …Make my day. . .” (editor’s note – I substituted the asterisks.  The charging party spelled out the offensive words.  The memo does not indicate whether she kisses her mother with that mouth). 

The next morning one of the participants in the group message showed the exchange to Skinsmart.  Skinsmart advised the charging party it “was obvious” she was no longer interested in working there, and terminated her.  That led to the unfair labor charge.

I’ve blogged before about the NLRB’s antennae being up over employers disciplining employees for social media posts.  Where the posts reflect employees grousing with one another over conditions of employment, that is concerted activity and off limits to discipline.  But “personal griping” isn’t concerted action.  And that conduct can be the subject of discipline. 

In this case, the NLRB found that the charging party’s rant  “merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment.”   The fact that none of her co-workers participating in the message joined in was evidence that they did not interpret the postings as “an expression of shared concerns over the working conditions.”  The NLRB’s “advice”?  The charge should be dismissed.   

There are two lessons here I think.  If you’re an employee, better tie your rant to some more tangible concerns.  Name calling in itself probably doesn’t cut it.  If you’re an employer be very careful about disciplining an employee for a social media post.  But don’t assume you absolutely can’t do it.  As usual, context makes a big difference.  And I know this sounds incredibly self-serving, but you probably should consult with your lawyer before you do anything.