An employee of a healthcare company (let’s call her Jane Doe) found out the hard way that what you say on Facebook will come back to haunt you. Jane Doe participated in a private Facebook group message with nine other people, seven were current employees and three were former employees. In the course of this conversation, which lasted for several hours, mention was made that a former employee would return in the capacity of a supervisor. That is when Doe stated she had told the supervisor “Aren’t you the supervisor for mind and body… In other words back to freak off…” She then mentioned that the healthcare company was “full of s**t… they seem to be staying away from me, you know I don’t bite my [tongue]’s anymore, F**K… FIRE ME… Make my day…” The transcript of this private Facebook group discussion was shared with the employer, who in turn granted Jane’s wish by firing her.
Jane Doe apparently did not want to be fired nor did she want her employer to make her day because she challenged the firing by arguing she was engaged in “concerted activity” which made her firing a violation of the National Labor Relations Act (“Act”). To fall within the protection of the Act, Doe had to demonstrate that she engaged in concerted activity either by being an individual employee who seeks to “initiate or to induce or to prepare for group action,” or this was an instance where individual employees bring “truly group complaints” to management’s attention. The National Labor Relations Board (“NLRB”) has also found concerted activity where employees discuss shared concerns among themselves before making a specific plan to engage in group action. Typically, the NLRB will find the conversations between coworkers regarding the terms and conditions of employment such as wages, work schedules, and job security involve mutual workplace concerns and are protected. Employees, who are making comments solely for themselves or make personal gripes, will not be protected under the Act.
Jane Doe’s actions were not protected because she was merely relating private actions on her part. Bragging that she told her supervisor to “back the freak off”, expressing her disdain for the return of a former coworker, observing the employer was “full of s**t” and stating that her employer should “FIRE ME” to make her day, are nothing more than griping and boasting that she was not afraid to say or do what she wanted in the workplace.
If you put it in writing, whether it’s on paper, on a blog, or in the context of a “private” online discussion, it’s not private and it never will be private.
Don’t ever invite your employer to “make your day” by firing you unless you have a job in hand or your resume is up-to-date.
Employers don’t look at this case as one that gives you carte blanche to fire employees. More often than not, a little corrective action will go a long way. Always review firing decisions to make sure that, in the process of firing an employee, you haven’t bought a retaliation claim.
Employers, read my May 1, 2013 blog post on Washington’s new social networking legislation.
Till next week,