By Ashley J. Shannon

On May 8, 2013 the National Labor Relations Board issued an Advice Memorandum on whether an employee can be discharged for comments made in a private Facebook Group Message. The issue in this case was whether the employee was engaged in a protected concerted activity when she posted comments to the Facebook group message.

The case involved 10 individuals in a private Facebook group message. The original message was trying to organize a social event. Seven individuals involved in the group message were current employees and three were former employees. Only four current employees took part in the conversation. After discussing the social event, the charging party (the employee ultimately terminated) made comments related to a former employee returning to the office and made statements like “Fire Me…Make my day…” Other than the charging party, no other current employees took part in this portion of the conversation. Two hours after these messages, a current employee joined the conversation and merely stated that it is getting bad at the work place, which was annoying and that there was stuff going on. The charging party did not respond to this portion of the messages.

One of the current employees on the message string who did not participate in the messages showed the online exchange to the employer.  The employer terminated the charging party stating that it was obvious the charging party was no longer interested in working there and the employer was also concerned about the charging party working directly with patients given her feelings about the office.

The National Labor Relations Board evaluated whether the Charging Party was engaged in protected concerted activity and therefore protected from being terminated. The test for whether an activity is concert is whether the activity engaged in “is with or on the authority of other employees, and not solely by and on behalf of the employee himself.” The National Labor Relations Board found that the Facebook messages did not constitute protected concerted activity because the messages did not involve shared employees concerns over terms and conditions of employment. Therefore, the termination of the employee did not violate the National Labor Relation Act.