Tuesday, May 28, 2013

“Fire me. … Make my day” does not equal protected concerted activity (thank god)

The Rolling Stones famously sang, “You can’t always get what you want.” One employee recently got exactly what she wanted (and needed) from her employer, yet filed a claim anyway. After taking to Facebook and pleading to be fired, she sought the help of the NLRB, claiming that she had been fired in retaliation for protected concerted activity. Thankfully, the NLRB concluded that she should not be entitled to proceed with her case.

In a group discussion with some co-workers, the employee said the following about her employer:

“They are full of shit … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK … FIRE ME. … Make my day…”

When an annoyed colleague took a print-out of the rant to management, the disgruntled employee was fired.

Earlier this month, the NLRB Office of General Counsel issued an advice memo [pdf], opining that a termination under these circumstances is legal, and recommended the dismissal of the unfair labor practice charge:

In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions. … These comments merely reflected her personal contempt …, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual “griping,” and boasting about how she was not afraid to say what she wished at work.

Even the NLRB had no sympathy for this devil of any employee. An employee who begs to be fired cannot seek satisfaction when her employer takes her up on her offer.

This case illustrates that a line of reasonableness does exist between protected concerted conversations about working conditions and a lone wolf spouting off at the mouth. Thankfully, the NLRB is not always a beast of burden for employers.

Regardless of the employer’s victory in this case, however, businesses should still tread carefully when considering terminating an employee for speech (online or offline) about working conditions. The NLRB remains active in this area, and a mis-step could prove costly (especially in light of Lafe Solomon’s recent re-nomination as general counsel of the NLRB).

For more on this case, you can read the following: