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Facebook Posts Protected Under the NLRA;Employer Required To Reinstate Terminated Employees

Posted by Attorney David McClurg in Business Management, Technology, Labor Relations / Comments

As indicated in our earlier posts, the National Labor Relations Board (“NLRB”) has been focusing significant attention on employees’ rights to communicate about workplace issues on social media sites. Most of the recent unfair labor practice charges the Board has filed against employers for disciplining employees based on such communications havebeen settled without a hearing or a decision on the merits of the charges.  That changed earlier this month when an Administrative Law Judge (“ALJ”) issued a decision in Hispanics United Buffalo, Inc. v. Ortiz finding that the Facebook posts that led to the termination of five “HUB” employees constituted “concerted protected activity” under the National Labor Relations Act (“NLRA”), and ordering the reinstatement of the employees in question with full back pay.

HUB is a non-profit agency that renders social services to economically disadvantaged clients in Buffalo, New York.  On a Saturday in October, 2010 an off-duty HUB employee posted the following message on her Facebook page from her home computer: “Lydia Cruz [a part-time employee] feels we don’t help our clients enough at HUB.  I have about had it!  My fellow co-workers how do u feel?”  Several other full-time employees responded with comments expressing their disagreement with Ms. Cruz’s assessment - sometimes laced with sarcasm and profanity.  Ms. Cruz became aware of these comments and complained to HUB’s executive director requesting that the employees involved be disciplined or terminated.

Just three (3) days after the posts went up HUB’s executive director terminated five (5) employees claiming that they had violated the agency’s harassment policies, and that their “bullying” comments had caused Ms. Cruz to sustain a heart attack for which the agency would have to pay compensation.

The administrative law judge that conducted the hearing on the NLRB’s unfair labor practice charge concluded that the Facebook posts constituted “concerted protective activity” under Section 7 of the NLRA and ordered that the employees be reinstated with back pay.  Section 7 grants employees the right (among other things) “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”.

The ALJ found that the postings and comments constituted “concerted” activity because the employees were “taking the first step towards taking group action to defend themselves against the accusations they could reasonably believe Ms. Cruz was going to take to management.”  He found it irrelevant that the employees: 1)had not taken their concerns to management before they were fired; 2) did not intend to take further action; and 3) were not attempting to change any of their working conditions.  He concluded “employees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.”

Further the ALJ found that the terminated employees had not engaged in any misconduct which forfeited their entitlement to protection under the NLRA.  He noted that the Facebook postings were not disruptive since they occurred on postings made during non-work hours on the employee’s personal computers, and that the comments did not violate the employer’s rules prohibiting harassment on the basis of protected characteristics such as race, gender, age or disability.  While noting that there was no evidence supporting the Executive Directors suggestion that the posts had caused Ms. Cruz to suffer a heart attack, the ALJ did not indicate that such evidence would have changed his decision.

The HUB case is significant in that it is the first decision to specifically hold that Facebook posts constitute concerted protected activity under the NLRA, and thus provides employers with a clear warning regarding the risks of imposing discipline based on employee posts on social media sites.

If you have any questions on this ruling or how it may impact your employment practices please feel free to contact David A. McClurg at Petrie & Stocking S.C. at 414-223-6956 or dmcclurg@petriestocking.com.

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