The first Administrative Law Judge ruling has come down in a social media case before the National Labor Relations Board. In a September 2, 2011 decision in Hispanics United of Buffalo, 3-CA-27872, an ALJ has ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker’s complaint about their job performance.
One of the employer’s domestic violence advocates frequently complained about her co-workers not doing enough to help the organization’s clients. One Saturday, off-clock, at home, a co-worker posted a message on her own Facebook page identifying the employee’s criticism and seeking her co-workers’ opinions about it. At least five co-workers responded, posting defenses and and commentary on staffing levels and other working conditions. The postings, replete with profanity, culminated with one employee making reference to a group meeting with the employer’s Business Manager — ostensibly to discuss these issues.
Days later, following a complaint by the employee who was the subject of the postings, the five employee posters were fired.
The ALJ’s analysis of the case makes express reference to the Board’s Parexel International LLC decision, 356 NLRB No. 82 (Jan. 28, 2011), which broadly expanded the scope of protected "concerted activity" earlier this year. He concluded that the five co-workers were engaged in protected activity, and thus their termination expressly for that activity — as conceded by the employer — violated Section 8(a)(1) of the Act:
… I conclude that the Facebook postings satisfy the requirements of that decision. The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging the discriminatees on October 12, Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted. Whittaker Corp., supra
In sum, I conclude that the above cases control the disposition of the instant case. Just as the protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.
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. That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five discriminatees for discussing Ms. Cruz-Moore’s criticisms of HUB employees’ work, Respondent violated Section 8(a)(1).
Finally, the ALJ agreed with the General Counsel that the various Facebook postings did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.
It is a brief decision, without many relevant facts in dispute, but which cites numerous earlier Board cases for similar propositions to those upon which this holding rests. It is another more concrete step in the evolution of Board law on social media issues, however, as practitioners now have an adjudicated decision on these issues — where previously we were left to speculate as to how they would be treated, based on a variety of complaints, advice memoranda and analogous rulings in other areas.
More resources and commentary:
- Our chapter in “Think Before You Click: Strategies for Managing Social Media in the Workplace,” Thompson Books
- Our May 18, 2011blog post on the issuance of Complaint in Hispanics United
- U.S. Chamber of Commerce Report: “A Survey of Social Media Issues Before the NLRB”
- General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases." — Hispanics United is the first case discussed.