HRWatchdog has frequently blogged on the increased activity by the National Labor Relations Board (NLRB) as it relates to employer discipline for social media postings made by employees. In the past year, the NLRB has seen an increase in the number of charges related to social media and has filed several complaints against employers who discharged employees for social media postings in which the employees complained about workplace conditions.
Employees, in both union and non-union workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities. Such activities might include two or more employees discussing working conditions, pay or other work-related issues. The typical example of a protected activity is when employees gather around the water cooler to complain about their supervisor. These days, that water cooler conversation might take place online – on Facebook, Twitter or some other social media outlet.
There has been some uncertainty for employers as to when social media postings will be regarded by the NLRB as a protected concerted activity and when employers can and cannot take disciplinary action against employees for their social media postings. Last month, the NLRB's Office of General Counsel issued a report outlining some of the social media cases. The report detailed the outcome of the NLRB's investigation into these cases. The purpose of releasing the document was to provide guidance to labor law counsel and human resource professionals.
Now, for the first time, a NLRB Administrative Law Judge (ALJ) has weighed in on the issue after a full hearing. The ALJ ruled against a Buffalo non-profit organization and found that the organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.
An employee at Hispanic United of Buffalo, Inc. (HUB), a non-union employer, posted the following on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow employees how do u feel?” Several other HUB employees then went on Facebook and commented on the original post. These comments expressed negative opinions about Cruz’s criticism, defended employee job performance, and complained about working conditions. The comments were often sarcastic and some used profanity.
None of the posts were made during work hours and none were made using a work computer. After learning of the posts, HUB discharged the employees who had participated, claiming that the comments constituted harassment of Lydia Cruz, who was originally mentioned in the post.
The ALJ disagreed with HUB’s position and found that the Facebook discussion was protected because it involved a discussion among coworkers about the terms and conditions of employment, including job performance and staffing levels. The ALJ noted that expressions related to defense of job performance are a protected activity, especially where the employees could reasonably believe that they would need to defend their job performance to management.
The ALJ ordered reinstatement of the five employees and also awarded the employees back pay because they were unlawfully discharged.
The ALJ also found that the employees did not engage in any conduct that forfeited their protection under the NLRA. The ALJ noted that there was not a violation of HUB’s anti-harassment policy because there was no evidence that the complaining individual was harassed and no evidence that she was harassed based on a protected characteristic.