On May 20, 2013, the NLRB's General Counsel's office, which heads the NLRB's prosecutorial functions, issued an advice memorandum dated May 8, 2013, in Tasker Healthcare Group, providing guidance on whether an employee engaged in protected concerted activity when she posted expletive laden comments in a private Facebook message complaining about the policies of her employer and daring the employer to fire her.

The charging party was a clerical employee with Skinsmart Dermatology, a medical office with approximately 19 employees. The employee and nine other individuals were invited into a Facebook message started by a former colleague who was organizing a social event. Of the ten individuals invited to the message, seven were current employees and three were former employees. Only four of the current employees took part in the conversation.

Soon after the message began, the charging party began to complain about her interactions with supervisors and explain that managers knew to leave her alone. At one point, the employee stated "fire me . . . make my day."

The next morning, after another current employee shared the Facebook message with the employer, the employer terminated the employee indicating that it appeared that she was not interested in remaining employed.

The NLRB Division of Advice noted that the panel (Board) heading the judicial functions of the NLRB typically finds that an employee engages in concerted activity where the activity is:

The Board has held that concerted activity:

(Meyers Indus. and Media Gen. Opers., Inc.)

The Division of Advice concluded that the comments made by the employee in this case were examples of an individual gripe and not concerted activity, reasoning that:

The Division of Advice found that it was not appropriate to apply the Board's "inherently concerted" analysis from Sabo, Inc. to this case. In Sabo, the Board found certain discussion topics like wages and job security were inherently indicative of mutual workplace concern (see Legal Update, Spreading Fear about Job Loss to Coworker is Protected Concerted Activity: NLRB). The employee's comments in this case were dissimilar because the postings did not either:

This advice memorandum is not binding precedent from the Board. However, it does provide guidance to employers contemplating firing an employee who raises gripes on Facebook or other social media about the types of unfair labor practice charges the General Counsel's office might prosecute.

The conclusion that the employee did not engage in protected concerted activity largely because there was no evidence that any other employees were interested in joining the employee's comments or opinions about the employer is consistent with traditional interpretations of the NLRA. However, the analysis in this advice memorandum of what constitutes protected concerted activity does not explain how the facts are distinguishable from those in a recent Board decision (see Legal Update, Employees' Facebook Posts about Coworkers Job Performance Criticisms was Protected Concerted Activity; Facebook Firings Unlawful: NLRB). Employers will continue to make decisions without a bright-line rule to rely on.

However, employers may be encouraged by the Division of Advice's analysis in this case. In particular, employers should note that: