In a first-of-its-kind ruling, on September 2, 2011, the National Labor Relations Board (NLRB) required an employer to rehire five workers it had fired after the workers posted comments about a co-worker and their employment with the company on Facebook. As part of its decision, an Administrative Law Judge with the NLRB found that the Facebook communications were a "concerted activity" that were protected by the National Labor Relations Act (the "Act").
The five employees now ordered to be reinstated all worked for
Hispanics United of Buffalo, Inc. (HUB), a non-profit that provides
social services to its economically disadvantaged clients in the
Hispanic community of Buffalo, New York. The events were initiated
by one of the five employees, when she made an off-hours posting on
Facebook on a Saturday, in response to criticisms from another HUB
employee named Lydia Cruz. Specifically, the employee posted on
Facebook that "Lydia Cruz, a coworker feels that we don't
help our clients enough at HUB I about had it! My fellow coworkers
how do u feel?" The other four employees responded through
Facebook postings, by making such comments as "What the Hell,
we don't have a life as is, What else can we do???" and
"What the f. .. Try doing my job." Other individuals not
implicated in this case also posted Facebook comments as
well.
Prompt action was taken after the Facebook postings were made. Cruz
saw the posts and complained to HUB's Executive Director,
attempting to prompt HUB to terminate or at least discipline the
Facebook posters. As a result, the immediately following Tuesday
(just three days after the initial comments were posted), each of
the five posters was terminated by HUB, following individual
meetings with the Executive Director. During those meetings, the
employees were told that Cruz had suffered a heart attack as a
result of the Facebook comments, requiring HUB to have to pay Cruz
compensation, and that the posts constituted bullying and
harassment that violated HUB's policies against
harassment.
The Administrative Law Judge hearing the matter, Arthur J. Amchan,
rejected HUB's rationale for the terminations, finding that
these reasons were unconvincing. In so ruling, Judge Amchan found
that it was unclear whether Cruz actually had a heart attack and
there was no evidence tying her health to the Facebook posts.
Further, he held that the Facebook postings did not fall under any
of the categories covered under HUB's anti-harassment policies,
which involved harassment based on gender and race, and other
protected classes. Lastly, Judge Amchan found that the employees
had not engaged in any other misconduct that would justify denying
them the protections of the National Labor Relations Act.
Of particular interest is Judge Amchan's reasoning underlying
his conclusion that the employees had engaged in "protected
concerted activity" and why the terminations were unlawful
under the Act. Notably, the Judge found it irrelevant that the
workers were not trying to change their working conditions, that
they did not communicate their concerns to HUB, and that there was
no express evidence that the employees intended to take further
organizing action. Yet, notwithstanding those facts, Judge Amchan
concluded that employees simply "have a protected right to
discuss matters affecting their employment amongst
themselves." Citing prior NLRB decisions that placed
protections on employee discussions regarding the terms and
conditions of their employment, Judge Amchan found that the
National Labor Relations Act also protected these five workers'
Facebook discussions about criticisms of their job performance.
Based on these findings, he ruled that HUB must offer all five
employees reinstatement as well as backpay compensation with
interest.
This case provides the first written decision addressing the recent
attention-grabbing issue of the NLRB's role in Facebook
disputes. Since it sets forth some details of the rationale for the
NLRB to rule in favor of employees, it provides valuable guidance
to employers on the substantial risks involved in disciplining or
terminating employees for postings on social media websites.
In light of this ruling, employers should exercise particular
caution when making employment decisions based on employee activity
on social media websites. As this decision shows, even
employees' general complaints about their employment or about
their co-workers can be held to fall under the National Labor
Relations Act's purview and be considered "protected
activity." As a result, employers potentially risk liability
any time they terminate or discipline employees for engaging in
off-hours social media activity, unless they can adequately
demonstrate that the disciplined employee engaged in misconduct
relating to the activity or can point to a specific policy that
truly prohibits the performed activity.
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