As I’ve discussed in a couple of previous posts, the National Labor Relations Board (NLRB) has been very active recently in the area of social media. Not only by creating its own accounts (like a Facebook page), but also by going after employers who discipline and fire employees over their online posts. Last week, an administrative law judge for the NLRB issued the Board’s first Facebook decision. (According to the NLRB’s press release about the case, this is the first Facebook case to go all the way through a hearing and a decision by a judge.) And here’s a red flag for the majority of employers whose employees aren’t unionized: The case was against a non-union employer.
In the case, brought against the nonprofit group Hispanics United of Buffalo (HUB), a group of employees had posted comments to a coworker’s personal Facebook page (the employees used their own computers and posted on their own time; there was no allegation that they used the employer’s resources). A HUB employee, Ms. Cruz-Moore, had apparently been criticizing the performance of her coworkers. Another employee, Ms. Cole-Rivera, posted this comment on her own Facebook page about it: “Lydia Cruz a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?” A group of coworkers responded, mostly by saying that they worked hard and that clients who complained wanted services the group didn’t provide. At some point, Ms. Cruz-Moore chimed in, asking the original poster to “stop with ur lies about me.” A few days later, five of the posters were fired. They were told that their posts constituted bullying and harassment of Ms. Cruz-Moore. (In a sad and strange twist, they were also told that Ms. Cruz-Moore had suffered a heart attack after reading the posts.)
The administrative law judge found that the firings violated the employees’ rights, under Section 7 of the National Labor Relations Act, to engage in concerted activity for the purpose of mutual aid or protection. These rights apply to union and non-union employees alike. The judge found that the Facebook discussion was “a first step towards taking group action to defend themselves” against Ms. Cruz-Moore’s criticisms, which they could reasonably have believed she was going to take to HUB management. By firing them, HUB precluded the employees from acting as a group in response to the complaints about their performance. The judge also found that HUB essentially admitted that it viewed the fired employees as a group engaged in concerted activity because it lumped them together in firing them.
According to a report issued last month by the NLRB’s General Counsel office, the NLRB has been involved recently in 14 cases involving social media. In four of the cases, the NLRB concluded that the employees’ Section 7 rights had been violated; in five cases, the NLRB found that the employees had not been engaged in protected activity, either because only one employee was involved (and therefore, there was no “concerted” activity) or because the employees were not trying to improve the terms and conditions of their employment (so their activity was not “protected”). In a handful of cases, the NLRB found that the employer’s social media policy was too broad, because employees could interpret it to prohibit protected activity, and in one case the Board found against a union that had posted a YouTube video of union organizers interrogating employees at a non-union workplace about their immigration status.