As we have discussed before on this blog, the National Labor Relations Board (“NLRB”) is focusing much attention on social media.  In particular, several complaints have been filed recently that allege that employers have retaliated against employees who have used social media to engage in activity that is protected by the National Labor Relations Act (“NLRA”).  In Hispanics United of Buffalo, Inc. v. Ortiz, on September 2, 2011, an Administrative Law Judge (“ALJ”) with the NLRB Division of Judges found that employees’ Facebook postings regarding their employment was protected, concerted activity and that their employer terminated their employment in retaliation for engaging in the protected activity.

Hispanic United of Buffalo, Inc. (‘HUB”), which is a non-profit corporation that provides services to the economically disadvantaged, was accused of discharging employees in retaliation for their participation in concerted activity under the NLRA.  The case started after an employee made a Facebook posting about a domestic violence advocate who worked at HUB one day per week.  The domestic violence advocate was often critical about the job performance of HUB employees.  Following a critical comment, one of HUB’s employees made a Facebook posting from her home stating that the domestic violence advocate “feels that we don’t help our clients” and asking her coworkers how they felt.  Several coworkers responded to the posting.  The responsive postings were critical of the domestic violence advocate, and some included profanity.  All of the postings were made away from the workplace.

The domestic violence advocate then complained to HUB’s executive director about the Facebook postings.  The executive director terminated the employment of five of the employees who had made the Facebook postings on the grounds that the postings constituted harassment and bullying in violation of HUB’s policies.  The executive director also informed the employees that the domestic violence advocate had suffered a heart attack as a result of the postings.

The NLRA makes it illegal to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the NLRA.  This Section specifically grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection[.]”  The issue in this case was whether the postings on Facebook constituted protective activity.

The ALJ concluded that the conduct was protected.  Applying previous decisions, he found that activity does not need to have the goal of changing working conditions to be protected.  Rather, as was the case here, discussions about criticisms of employees’ job performance are protected.  In addition, the ALJ found that the employees were taking the first step towards taking group action to respond against the domestic violence advocate’s accusations, which they thought she may take to management.  Further, the fact that the five employees were terminated at the same time showed that HUB viewed them as a group and that their activity was concerted.

The ALJ also considered whether the postings were such that the employees may have forfeited their protection under the NLRA.  The ALJ considered four factors:  (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice.  The ALJ found that the factors weighed in favor of the employees because (1) the Facebook postings were made outside of work and not during working hours; (2) the subject of the posts were related to a coworker’s criticism of employees’ job performance; (3) there were no outbursts inasmuch as some of the posts did not mention the domestic violence advocate and none mentioned HUB; and (4) the fourth factor was not relevant.

The ALJ also found that there was no evidence that the employees violated HUB’s anti-harassment policies.  Further, the ALJ found that the discharges were not justified because of the heart attack as there was no evidence showing a nexus between the heart attack and the Facebook posts.  As a result, the ALJ ordered that the employees be reinstated with back pay.

Thus, employers must be aware of the fact that discussions on social media, including those that are made away from the employer’s computers and off working hours, can have significant implications.  An informal discussion between a small group of employees about a coworker can be considered concerted activity that is protected by the NLRA.  Thus, when employers become aware of such discussions, they must be careful in how they respond to the same.

Bear in mind that employers may have substantial and legitimate business reasons that outweigh employee Section 7 rights that will justify reacting to employee activity.  Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir. 1998); Peyton Packing Co., 49 NLRB No. 119 (1943).  Employers may make and enforce reasonable rules covering the conduct of employees on company time.  Employers have the right to maintain their premises, operations, and production in an orderly, efficient fashion and to discharge disruptive or violent employees or prohibit conversation that is contentious and emotionally charged.  The employer, however, bears the burden of proving justification of its actions which the employer in this case failed to do.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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