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Daring can be Dangerous to Employment Status

If you’re going to dare someone to do something, you don’t get to cry foul if they do it. That’s the lesson a SkinSmart Dermatology employee learned the hard way in the latest example of things that employees post on Facebook that gets them fired.

While ranting about her supervisors in a Facebook group message with nine other current and former coworkers, the employee said her supervisors were essentially full of excrement and bragged that they seemed to be staying away from her because she refused to bite her tongue around them anymore. Then, paraphrasing the oft-quoted line from the movie “Sudden Impact” she posted, “FIRE ME…Make my day.” The movie character Dirty Harry said that line to a robber daring him to do something illegal so Harry could justifiably shoot him. The robber, of course, surrendered. However, because this is real life and not the movies, the employer did indeed make the employee’s day and fired her.

But wait, the comment was posted in a group conversation visible to only the ten people invited to that group. One might ask how the employer found out about the comment. Ok, you probably already know the answer to that. One of the employees in the group showed it to a supervisor the next day. Evidently, hard lesson No. 2 for the ousted employee is that your Facebook friends are not necessarily your friends.

I’m guessing the employee did not really want to be fired because, according to the article “Daring your boss to fire you is generally not a good idea” on, after she was terminated she brought an unfair labor practice charge against the employer alleging that her dare constituted protected activity under Section 8 of the National Labor Relations Act (NLRA). The Office of the General Counsel disagreed because “the employee’s statements merely reflected her individual contempt for the workplace and no other coworkers joined in her criticism.”

While this is a win for this employer, all employers should know that if the employee’s coworkers had joined in the rant, their comments probably would have been protected (because a group of employees discussing working conditions, including complaining about their supervisors, is protected activity under the NLRA) and thus the firing probably would have been illegal. Therefore, my advice to employers is to seek legal counsel before pulling the trigger in response to an employee’s Facebook postings. And, my advice to disgruntled employees is to be careful what you wish for because you just might get it.

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Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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