Starting this week, we are very pleased to share with our readers a series of guest posts by three of Fredrikson & Byron’s talented summer associates. Here is the first guest post, by summer associate, Chad Ambroday.* Thanks, Chad, for the post!
In a recent Facebook firing case, the employer, SkinSmart Dermatology, discharged an employee after she dared her supervisors to fire her in a Facebook group message. The employee, along with nine other current and former coworkers, initially created the forum to plan a social event. Only the ten individuals invited to the group could view the conversation. The first hour of their conversation focused on planning the event, but their exchange then digressed into banter about the workplace.
The employee boasted about one interaction in which she told a supervisor to “back the freak off.” A few minutes later, the employee heightened the degree of criticism, stating that her supervisors “are full of sh** . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F*** . . . FIRE ME . . . Make my day . . . .”
The conversation fizzled out as nobody responded to the employee’s comments. The only contribution came approximately two hours later after the employee stated that there was no one left in the group message to entertain her. A current coworker replied that she made the employee laugh and then mentioned that “it’s getting bad there [at the Employer’s workplace], it’s just annoying as hell. It’s always some dumb sh** going on.” The conversation ended shortly thereafter.
The next morning, as happens so often in these cases, a coworker showed the message string to a supervisor. The clinic fired the employee, citing doubts about her commitment to her job and concerns about her interactions with patients as the basis for her termination.
The employee then brought an unfair labor practice charge, alleging that her Facebook posts constituted protected concerted activity under Section 7 of the National Labor Relations Act. The case was submitted to the Office of the General Counsel, which found that the Facebook posts were not protected concerted activity because the employee’s statements merely reflected her individual contempt for the workplace and no other coworkers joined in the criticism.
While we were happy to see that the employee in this case was not able to use the National Labor Relations Act as a shield behind which the employee could freely denigrate her supervisor, the case raised a larger, more practical question – were the posts really so bad that it was worth having to defend against an unfair labor practice charge? The only individuals who could see the posts were the ten individuals who were invited to the group and no one responded. Perhaps the employer should have gotten a thicker skin. Hard to say.
If an employee brought these posts to your attention, what would you do?
*Chad Ambroday is a rising third-year law student at the University of Arizona. Both he and his wife, Autumn, were born on the Leech Lake Reservation in northern Minnesota. They have a seven-month old son, Arlo, who rules their household.