NLRB Finds Employees’ Facebook Posts Venting about Coworker Are Protected

On December 14, 2012, the National Labor Relations Board issued its latest Facebook firing decision, affirming the administrative law judge ruling in NLRB v. Hispanics United of Buffalo, Inc.  (See our original post, NLRB Judge Finds Employer Unlawfully Discharged Five Employees For Facebook Postings)

In Hispanics United, as you may remember, a group of employees complained on Facebook about one of their coworkers who had a habit of criticizing their job performance.  The original poster wrote:

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?

Coworkers then responded with posts such as:

  • What the f. .. Try doing my job I have 5 programs
  • What the H…, we don’t have a life as is, What else can we do???
  • Tell her to come do mt [my] f…ing job n c if I don’t do enough, this is just dum

The original poster then wrote:

  • Lol.  I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don’t provide, like washer, dryers stove and refrigerators, I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human  love ya guys

Lydia Cruz-Moore, read the comments and posted, “Marianna stop with ur lies about me. I’ll b at HUB Tuesday…”  When she got into work she went to her employer and complained that she was being harassed. 

The employer determined that the Facebook comments constituted “bullying and harassment” of a coworker and violated their “zero tolerance” policy, so the employees were terminated.

After their termination, the employees filed an unfair labor practice charge, claiming their Facebook comments constituted “protected concerted activity.”  The ALJ agreed, and now the Board has affirmed that decision.

Of all the Facebook firing cases before the NLRB, the Hispanics United case has been seen by many (including us) as being a bit of a stretch.  The employees were posting about a coworker, not a supervisor, and the posts don’t really seem to indicate that the employees are planning to do anything about the situation (although the Board found that the posts showed that the employees “were taking a first step towards taking group action” because the employees has reason to believe that Ms. Cruz-Moore was going to report them to management). 

Instead, as the dissenting member of the NLRB pointed out, the comments appear to be more like “venting” than a call for action. 

While we tend to agree with the dissent (which unfortunately does not control), the Board’s decision in this case is yet another reminder that, as an employer, before you discipline or discharge an employee because of comments made on social media, you would be wise to stop, reflect, and do some analysis (hopefully with legal counsel) about whether the comments may actually be protected. 

Have you addressed potentially harassing comments on Facebook between employees that don’t appear to be “protected concerted activity”?  How have you handled similar situations?  As always we welcome your input!

 

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Contributing Authors

Teresa Thompson

Teresa Thompson Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.

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Norah Olson Bluvshtein

Norah Olson Bluvshtein Norah is an employment law attorney representing businesses both in and out of the courtroom on employee issues from hiring, to firing, and everything in between. She writes, speaks, and consults on employee use (and misuse) of the Internet, social media, and technology.

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