post from earlier today, my colleagues,
Lyndsey Kruzer and
Mike Rosen, discuss the NLRB's conclusion that social media
comments can be protected activity:
The National Labor Relations Board
(NLRB) recently issued a significant decision - solidifying the
position it has staked out over the past 18 months - that an
employee's posts on social media may be entitled to protection
under the National Labor Relations Act (NLRA), regardless of
whether the employee is part of a unionized workforce.
Hispanics United of Buffalo, Inc., the NLRB held that, in
certain circumstances, it is unlawful for an employer to discipline
or discharge employees over comments made in social media. In
analyzing whether comments are entitled to protection, the NLRB
held that the same analytical framework applied to oral
communications among co-workers (known as the Meyers
Industries framework) should be applied to comments made
by workers using social media.
Industries, employees' comments are entitled to
protection if those comments are motivated by employees'
concerted, NLRA-protected activity. In determining whether activity
is concerted, the NLRB examines whether activity is engaged in with
or on the authority of other employees, and not solely by the
employee on behalf of himself. Furthermore, to be protected, the
content of the speech must concern the terms and conditions of
In the Hispanics
United case, the employer terminated five employees for
comments made on Facebook. Specifically, one employee (Lydia
Cruz-Moore), who was not terminated, commented that the employer
was not doing enough to help victims of domestic violence who used
the organization's services. Thereafter, another employee
posted, "a coworker feels that we don't help our clients
enough... I about had it! My fellow coworkers how do u feel?"
This comment prompted responses from four other employees, who
objected to Cruz-Moore's implication that their work was
subpar. Cruz-Moore complained about the exchange to management, who
fired the five other employees for bullying and harassment.
The NLRB held that the terminations
were unlawful because the employees' comments were the first
step toward taking action against accusations about their
performance that they believed Cruz-Moore would make to management.
The Board reasoned that that comments did not rise to the level of
harassment and bullying that was banned by the employer's
policy. It further held that even if the comments did violate the
employer's policy, a workplace policy that discourages
protected activity cannot lawfully be enforced.
This case confirms the NLRB's
position that social media comments will be analyzed in the same
way that traditional oral statements have been evaluated. Moreover,
the NLRB's conclusion that the specific comments were
"protected conduct" shows that the current Board is
inclined to find protection if the comments can possibly be
construed as a first step toward group activity, regardless of
whether a union is involved.
As such, Hispanics United serves as an
important reminder to employers to exercise caution when
considering discipline or discharge over employee comments made on
social media. In addition, employers should ensure that their
social media policies are carefully drafted so that they are not so
broad as to prohibit employees from engaging in protected
Effective January 1, 2015, certain employers became subject to the employer mandate of the Patient Protection and Affordable Care Act, and thus subject to liability under the ACA Employer Shared Responsibility provisions.