The National Labor Relations Board (“NLRB”) has ordered New York non-profit Hispanics United of Buffalo, Inc. (“HUB”) to reinstate 5 employees it fired for posting comments on Facebook about working conditions.
In 2010, HUB employee Lydia Cruz-Moore made several critical comments about the job performance of other HUB employees to co-work Mariana Cole-Rivera. After hearing Cruz-Moore’s criticisms, Cole-Rivera posted a message on Facebook. Her message stated that Cruz-Moore thought her co-workers did not do enough to help HUB’s clients and asked for her co-worker’s thoughts. Other HUB employees responded by defending their job performance in subsequent posts. Cruz-Moore learned of the posts and complained to her Executive Director. The Director met with 5 of the posting employees, informed them that their posts constituted bullying and harassment and violated HUB’s harassment policy. The 5 employees were fired as a result. The employees challenged their terminations before the NLRB.
Following an NLRB hearing, an Administrative Law Judge held that the Facebook posts were protected under the National Labor Relations Act (the “Act”). The judge explained that employees have a protected right under the Act to discuss amongst themselves matters affecting their employment. In this case, the Facebook exchange was the employees’ first step towards collectively defending themselves against Cruz-Moore’s criticisms. By firing the employees, HUB prevented them from taking any further action. The judge therefore concluded that HUB violated the Act.
The judge further found that none of the employees had engaged in any conduct that forfeited their protection under the Act. Specifically, the judge noted that the posts were not made at work or during working hours, the posts did not include any “outbursts” and none of the employees violated any HUB policies or rules.
The judge ordered that the 5 employees be reinstated and awarded backpay with interest. HUB has the right to appeal the decision.
The NLRB has reported receiving an increasing number of social media related charges over the past year. As it announced, this is the first case involving Facebook to have gone to a hearing and resulted in a written decision. Unfortunately, as a test case of sorts, it provides little substantive guidance. The posts in question (which are set forth in the decision) were relatively benign. And as the judge noted, the posts were made outside of working hours and were not written at work. Moreover, only a few of the posts mentioned Cruz-Moore by name. However, it is clear from this decision and the NLRB’s recent report on its social media related investigations that the use of social media by employees is on the NLRB’s radar.