NLRB: OK to Fire for ‘Mere Griping’ About Employers on Facebook

Photo illustration by Dreamstime.

By Eric B. Meyer

The National Labor Relations Board is softening its position on employers who fire employees for rants on Facebook.

Employees who merely gripe can get canned.

Three recent advice memoranda from the NLRB (here, here, and here) reaffirm that employees who engage in protected concerted activity online are protected against employer discipline. Conversely, employees who merely gripe about their employer online are subject to discipline, up to and including termination.

Only “concerted activity” is protected

I’ve discussed protected concerted activity on the blog before. However, why don’t I let the NLRB do the talking for me (this is from the third “here” above):

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self organization.'” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted. Comments must look toward group action; “mere griping” is not protected.”

In each of the cases — discussed in more detail here (thank you Seth Borden) and here (thank you Phil Miles) — you’ll see that the Facebooking employees, one of whom, told “Falmart” to go “wuck” itself (real dreative, couchebag); another of whom wished that his employer’s customers would “choke on glass as they drove home drunk,” were merely griping.

None of these posts could have been reasonably construed as a plea to initiate group action against an employer. And, in fact, none did. Thus, no protected concerted activity.

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And in other related news…

Today is part two (here is part one if you missed it — and if you missed it, we can’t be friends) of a fab round-table discussion, with an all-star panel of labor and employment lawyers, bloggers and social media adopters who will be sharing their expertise on various aspects of social media and human resources. If you have HR and social media questions, tune in at The Proactive Employer website or via iTunes.

And if you still have HR and social media questions after that, then why not buy, Think Before You Click: Strategies for Managing Social Media in the Workplace”? I am a contributing author. And I think you’ll like this book.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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