Originally published on the Employer's Law Blog

In June we posted that the National Labor Relations Board ("NLRB") filed a complaint against Hispanics United of Buffalo ("HUB"), a non-profit company that provides social services to low-income clients. The complaint alleged that HUB violated its employees' Section 7 right to engage in protected and concerted activity when it discharged five employees for posting comments about their workplace on a co-worker's personal Facebook page. In July, the case was tried before an administrative law judge ("ALJ"). The ALJ ruled that HUB violated Section 8(a)(1) of the National Labor Relations Act by discharging these five employees who were engaged in protected activity.

This complaint stemmed from a series of Facebook posts in October 2010. Initially one employee, Mariana Cole-Rivera, posted a comment on her personal Facebook page from home, stating "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do you feel?" Fellow employees responded by posting their own comments on Ms. Cole-Rivera's Facebook page. These employees posted comments defending their work performance and criticizing the working conditions at HUB. HUB terminated the five employees who made these Facebook posts claiming that they bullied and harassed Ms. Cruz.

The ALJ held that these terminations were unlawful because the employees were exercising their Section 7 rights by posting these comments on Facebook. Section 7 provides that "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (emphasis added). Relying upon prior NLRB precedent, the ALJ defined "concerted activities" as those activities "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." The ALJ concluded that HUB violated section 8(a)(1) by discharging these employees who were engaged in protected concerted activity. The ALJ ordered HUB to reinstate the employees with backpay.

As social media becomes more commonplace in everyday life, employees are turning to Facebook, Twitter, and other social media outlets to air their workplace opinions and concerns. As this decision illustrates, employers must be extra careful before disciplining employees for posting comments on social networking sites.

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