On May 8, 2013, the National Labor Relations Board (“NLRB”) released a memorandum providing guidance on whether an employee’s Facebook comments with current and former co-workers constituted protected, concerted activity. The memorandum was prepared in response to an employer’s request for advice about whether it violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by discharging the employee for comments made in a private social media forum.  The NLRB found that the employer’s discharge of the employee was justified since her comments expressed non-protected “mere griping” and not  “concerted activity,” which is protected activity under the NLRA.

The employee worked for Tasker Healthcare Group at a dermatology office with 19 employees.  The employee participated in a private Facebook group message with nine other individuals, which was created to organize a social event.  Seven current and three former employees were invited into the Facebook group message.  After discussing the event, the employee mentioned a recent conversation she had with a supervisor, in which she told the supervisor to “back the freak off.”  She then proceeded to declare to the group that the employer should “fire me . . . [m]ake my day.”  No other member of the group message shared in her complaints or made any work-related statements in response to her dialogue.

The following morning, another employee showed the exchange to the employer. The employer terminated the employee who authored the Facebook message, noting that the employee was clearly not interested in remaining employed.

The NLRB concluded that the group Facebook message did not  constitute concerted activity because it failed to involve shared employees concerns over terms and conditions of employment.  The Board found her posts to be nothing more than individual “griping” and “boasting”.  The memorandum distinguished griping and boasting from concerted activity by explaining that concerted activity involves employees who seek to initiate or prepare for group action.  For example, a group discussion about bringing complaints to management’s attention would be protected, concerted activity.  If the employees discuss subjects of mutual workplace concern (i.e. schedules, wages, work, and job security), a group discussion about shared concerns among employees is protected even without any contemplation of group action.

Griping, on the other hand, is not in preparation for any action. Comments made solely by and on behalf of the employee are not concerted.  In the case at issue, the employee’s comments simply reflected her personal opinion of the supervisor and employer.  Although the comments referenced her work situation, they were not protected under the Act.

This advice memorandum provides guidance to employers who are considering terminating an employee for making complaints about the employer on Facebook or other social media outlets. Employers should be aware that if the employee is not alone in his or her “gripes” or if the employee has suggested group action, the employee’s comments are more likely protected.

Heather Sherrod (heather.sherrod@nortonrosefulbright.com / + 713 651 5163) a lawyer in Norton Rose Fulbright’s Employment and Labor Practice and summer intern Lexi McWhinney.