Monday, September 12, 2011

NLRB: Facebook Post Was Protected Activity

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees 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…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.