Happy news from the National Labor Board: Posting obscene comments on Facebook and then asking an employer to “FIRE ME … Make my day” does not fall into the category of protected activity under federal law.
In a prime example of just how lame some employee legal claims can be, a clerical worker in a dermatology office claimed she’d been unlawfully fired for comments she made in a Facebook “group message.”
The original discussion dealt with an upcoming social event, but when recent developments in the workplace came up, the woman ranted (we’ll clean this up for propriety’s sake), “They (the employer) are full of [expletive]. They seem to be staying away from me, you know I don’t bite my (tongue) anymore, [expletive] … FIRE ME. … Make my day.” She made other demeaning comments about her supervisor and another co-worker.
Later, another member of the message group showed the comment to management. The ranting woman was fired a couple of hours later; management said it was obvious she no longer wished to work there.
Just ‘individual griping’
The NLRB’s advice memo shot down the woman’s argument that her comments were protected under the statutes that guarantee employees the right to discuss the “terms and conditions” of their workplace.
“[The complainant’s] comments merely expressed an individual gripe rather than any shared concerns about working conditions. Specifically, her comments bemoaned the return of a former employee and stated that her current supervisor tried to tell her something and she told her to “back the freak off’; that the Employer was “full of [expletive]”; and that the Employer should “FIRE ME … Make my day.’
“These comments 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. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual “griping,” and boasting about how she was not afraid to say what she wished at work,” wrote NLRB counsel Barry Kearney.
Another organization nailed for communication policies
The NLRB showed some admirable common sense in the case of the disgruntled dermatology diva, but a recent case indicates the board’s continued vigilance in monitoring organizations’ social media and electronic communications policies.
The latest target: UPMC, which operates 20 hospitals and clinics in Pennsylvania.
Employment law attorney Charlie Plumb, writing on employerlinc.com, outlined the three specific policies examined by the NLRB:
- No-solicitation policy. The organization’s policy banned the use of work emails for all non-work solicitations. Because there was no evidence that UPMC had discriminated in its enforcement of the policy — by disciplining employees for sending pro-union emails, for example — the administrative law judge said the policy was lawful.
- Email and messaging policy. This rule banned electronic communication that was “disruptive,” “offensive” or “harmful to morale.” It did allow messages “sanctioned by UPMC executive management.” The ALJ ruled that the policy was overly broad because employees had no effective way to figure out exactly what type of communications were banned. Verdict: The policy violated the National Labor Relations Act.
- Acceptable use of information technology policy. These rules allowed employees to use company computers for non-work purposes as long as the activity didn’t interfere with fulfilling job requirements. Employees were allowed to access social media sites, “so long as (they) did not describe their association with UPMC” or disparage the company. The ALF found those restrictions too broad, and that the overall effect of the policy would be to discourage employees from exercising their right to discuss the terms and conditions of their jobs.
Clearly, the NLRB remains serious about cracking down on employers’ social media and email policies. What can employers do? Plumb opines:
This decision against UPMC and other similar decisions likely will be appealed by employers to the courts. Employers have a legitimate interest to monitor and manage employees’ use of electronic communication and social media when it impacts the workplace and coworkers. We should expect federal courts to have the final say about what electronic communication policies are lawful and enforceable.
