Watch what you wish for. There is a line in the sand between protected group activity and general “griping.” The distinction is critical, however, as it may spell the difference between unemployment or the impingement upon protected speech. In Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party participated in a group message on Facebook in which she utilized some harsh, and very critical language regarding her employment position. The conversation culminated with the charging party’s statements: “FIRE ME … Make my day.” When the employer did just that, the Charging Party unsuccessfully challenged the decision before the NLRB.

The NLRB defines Protected Concerted Activity as follows:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

Generally, an employee may discuss workplace issues with co-workers even when that conversation is unflattering. However, when the conversation is merely “griping,” it may not constitute protected activity and can be grounds for termination. According to the NLRB’s Associate General Counsel: “In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions … 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.”

The lesson for an employer is that it may be appropriate to terminate an employee who engages in similar conduct. To be safe, it is always good practice to maintain an up-to-date computer use policy specifying the lack of privacy on social media. For the employee, however, it would be wise to reconsider your next post when engaging in social media “griping.”

For more information on how this may impact your business, contact:

• Seth L. Laver (267.519.6877; slaver@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.