CLIENT ALERT / NLRB Ruling on Social Media Print

In the first ruling of its kind, an Administrative Law Judge at the National Labor Relations Board found that a Buffalo, New York nonprofit organization unlawfully terminated five employees after they posted comments on Facebook concerning work conditions, including workload and staffing issues.  Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (September 2, 2011).  While the employer is appealing the decision, it makes sense for employers to understand this case and what it means. 

In Hispanics United of Buffalo (HUB), a newly hired employee complained verbally and via text messages to co-workers about the job performance of other HUB employees – particularly those in the housing department.  One of these co-workers posted the following message on her Facebook page from her home:

"Lydia Cruz, a co-worker, feels that we don’t help our clients enough at HUB. I about had it!  My fellow co-workers, how do you feel?"

This prompted a response by co-workers on Facebook from their home computers which, in essence, defended their job performance with a sprinkling of colorful language.  All relevant Facebook posts occurred on home computers, on a Saturday, which was a non-workday for HUB employees.  That same Saturday, Lydia Cruz-Moore (the newly-hired employee concerned about performance issues) complained to the HUB Executive Director with text messages suggesting that the Executive Director at least discipline and perhaps terminate those employees who posted negative comments on Facebook.

The following Tuesday, the Executive Director met individually with the five employees who had made the Facebook posts the previous Saturday and fired each of them.  The Executive Director told the employees that their posts constituted bullying and harassment and violated HUB’s policy on harassment. 

Citing Section 8(a)(1) of the National Labor Relations Act, which provides the employees with certain rights, including the right “to engage in other considered activities for the purpose of collective bargaining or other mutual aid or protection”, the Judge concluded that the Facebook postings by the five employees was protected concerted activity.

The Executive Director testified that even though the Facebook postings occurred during non-work hours using non-work computers, the employer would have terminated the five employees even if they had made their comments “around the water cooler.”  The employer cited its “harassment” policy for the proposition that the terminations of these five employees were lawful, but the Administrative Law Judge rejected the implication that the employer’s “harassment” policy was implicated in the facts of this case.  Of interest, the five employees at HUB were not replaced and the Administrative Law Judge noted in his decision that “for reasons not disclosed in this record, [HUB] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

The Judge also rejected the employer’s contention that the employees engaged in “misconduct,” which permits termination if employees engage in “misconduct” during the course of an otherwise protected activity.  The factors in this analysis include the place of a discussion, the subject matter of the discussion, the nature of the employee’s outburst, and whether the outburst was, in any way, provoked by an employer’s unfair labor practice.  The Judge responded to the above by indicating that the Facebook posts were not made at work, nor during work hours, and the subject matter related to a co-worker’s criticisms of employee performance, which the Judge concluded the fired employees had a “protected right to discuss”.   The Judge also noted that there were no “outbursts” as that term is normally understood.

While it could be argued that the HUB case may be of little precedential value, the General Counsel of the National Labor Relations Board did issue a “report on social media cases” on August 18, 2011, regarding the outcome of investigations into fourteen cases involving the use of social media and employer’s social and general media policies generally.  In this report (found at http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases), the General Counsel discusses the HUB case (which reflects the General Counsel’s recommendation that there was an unfair labor practice prior to the decision being made) and other cases involving the General Counsel’s recommendations. 

Analysis
While the NLRB General Counsel’s assessment of what is/is not lawful seems to be somewhat internally inconsistent, generally speaking appropriate guidance with respect to concerted protected activity includes the following:

1. To the extent the discussion is outside of work on non-work time using non-work equipment and these discussions are with co-workers, it is more likely that they will be considered a protected concerted activity.

2. The more closely the subject matter of the discussion involves terms and conditions of employment either among several employees or prompted by prior communications with co-workers or past communications with co-workers, the more likely a protected concerted activity will be found.

3. Even though an employee and/or employees use inappropriate language, as long as there is no specific threat against a particular individual, it is more likely the court will conclude that the activity was considered protected.

4. Finally, if any communication by employees is prompted by an employer’s unfair labor practice, the court will almost always conclude that the communication was considered concerted and protected.

Social Media Policies
Social media policies which broadly define prohibited conduct without specific reference to a lawful business purpose make it more likely that the Board will conclude that the intent of the policies is to preclude protected concerted activities.  The more specific the policy is in articulating the business purpose of the policy and defining terms to effectuate the lawful business purpose, the more likely the policy will be upheld.

If you have any questions, please don’t hesitate to contact

any of the attorneys at TMF to discuss this or any other legal matter.

 

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If you have any questions, please don’t hesitate to contact

any of the attorneys at TMF to discuss this or any other legal matter.

 
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