Facebook Firings Revisited

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The National Labor Relations Board often takes a pro-labor stance when deciding cases brought before it.  In a number of cases where the Employer terminated an employee for posting disparaging comments about the Employer or the workplace on Facebook or another internet site, the NLRB ordered the Employer to reinstate the employee.  The NLRB found in these cases that the posted messages were protected "concerted activity" and that the employee's termination was an unfair labor practice.  However, in a recent case Tasker Healthcare Group dba Skin-Smart Dermatology, the NLRB Associate Counsel sent an Advice Memorandum to the Regional Director supporting the termination of an employee by a medical practice where the employee had vented about her workplace in a private group message sent via Facebook.

In Tasker, the employee and 9 others participated in a group message in which only invited individuals could participate.  The message initially focused on a planned social event.  But the employee later in the string of messages told the others about an exchange between the employee and her supervisor.  In this string of messages the employee told the others that she had told the supervisor to "back the freak off", that the Employer was "full of sh___", that the employee would not "bite my tongue any longer",  and that the supervisor should "FIRE ME . . . and make my day".   Eventually one of the other individuals posted that the workplace was "annoying as hell" and that "there was always some dumb sh__ going on."

On the next day, one of the individuals who had participated in the message string showed it to the Employer.  The Employer then fired the employee in question.  The Employer told the employee it was obvious from the message string that the employee was not interested in continued employment with the medical practice, and that the Employer was concerned about having the employee work directly with patients given the employee's feelings about the medical practice.

The employee filed a claim against the Employer with the NLRB alleging an unfair labor practice.  The NLRB Regional Director asked for advice from the Associate Counsel. The Associate Counsel acknowledged that the NLRB generally protects individuals who engage in concerted activity.  However, the Associate Counsel found that the employee had only been expressing an individual gripe and had not been engaging in a discussion of shared employment concerns.  The Associate Counsel found further that the employee's Facebook comments were nothing more than personal contempt for the Employer and in no way could be characterized as a discussion of the terms and conditions of group employment.  As a result, the Associate Counsel determined that the employee's termination was not unlawful.

If you have any questions or need assistance in any matter involving employee hiring, discipline or firing, please give one of our employment attorneys a call at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.  The EEOC settled its first lawsuit alleging discrimination under the Genetic Information Non-Discrimination Act (GINA).  The lawsuit was brought by the EEOC on behalf of a temporary worker.  When the worker's temporary assignment came to an end, the worker applied for permanent employment.  The employer made the worker an offer and then sent the worker to its contract medical examiner for a pre-employment drug test and physical.  The worker was required to complete a questionaire which inquired about the existence of heart disease, hyper-tension, cancer, diabetes, arthritis and other physical and mental disorders in her family medical history.  Following the employee's examination, the employer rescinded its employment offer.  GINA prohibits employers from discriminating based on genetic information and restricts employers from requesting, requiring or purchasing such information.  In this case, the EEOC determined that the employer violated federal law when it requested the worker's family medical information through a contract medical examiner.  If you have any questions about GINA or other employment law matters, please contact one of our employment attorneys at 937-223-1130 or jsenney@pselaw.com