Earlier this year, speculation and educated guesses gave way to NLRB General Counsel Advice Memoranda on how the NLRB will address unfair labor practice charges challenging so-called Facebook firing cases. Now we have our first charge that actually has gone to hearing and resulted in an Administrative Law Judge decision.
In Hispanics United of Buffalo, Inc., the employer, a not-for-profit corporation that renders social services to economically deprived residents of Buffalo, New York, terminated five employees for their comments on Facebook after a co-worker had raised concerns about the job performance of other HUB employees. Apparently concerned that the co-worker would bring her concerns to management, one of the five employees posted the following on her Facebook page:
[Co-worker] feels that we don’t help our clients enough at HUB I about had it!
My fellow coworkers how do u feel?
Thereafter, the others followed with comments suggesting how difficult their jobs actually were. The co-worker mentioned in the posts complained to management about the Facebook posts. The manager then met with each of the employees that posted on Facebook and terminated them.
The Administrative Law Judge (ALJ) concluded that the Facebook "communications … in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs are protected" under Section 7 of the National Labor Relations Act (NLRA). According to the ALJ, the terminated employees were "taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [the co-worker] was going to make to management." By discharging the employees, the ALJ concluded, the employer prevented them from taking further action. In short, the ALJ stated,
"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."
The ALJ went on to hold that the terminated employees did nothing to forfeit the protections of the NLRA. There was no evidence that the terminated employees violated any employer policies or rules. The Facebook posts were not made at work or during working hours and the postings contained no abusive "outbursts" that overrode the right to protection under the NLRA.
Though employers should recognize that this decision is only the decision of a single ALJ and not a decision of the entire Board, the decision does follow naturally from the Advice Memoranda that recently have been generated by the Board’s General Counsel’s Office. Employers should continue to use caution before taking disciplinary action against employees for what they post on their social media sites when those posts relate to the terms and conditions of their employment. As we have noted in the past, posts that do not implicate working conditions and reflect more of a personal gripe as opposed to an effort to enlist co-worker assistance will be less likely to garner protection from the Board.