As more and more social media websites like Facebook strive to hit one billion active users, employers will continue to update their internal social media policies and seek new ways to monitor and discourage their employees from posting disparaging online remarks about their company and other employees. Employers need to be aware of a recent decision by the National Labor Relations Board (the “NLRB”) regarding the termination of non-union employees based on their online postings.
In Hispanics United of Buffalo, Inc., Case 03-CA-027872, 359 NLRB 37 (Dec. 14, 2012), the employer discharged five non-union employees for responding to a co-worker’s criticisms of their job performance on Facebook. The dispute began when, one employee, Cruz, known for criticizing other employees, sent a text message to another employee, Cole, in which she questioned the timeliness and adequacy of the assistance her co-workers were providing to their clients, victims of domestic violence. From her personal home computer, Cole sent a message to the other four employees on her Facebook page stating “[Cruz], a co-worker feels that we don’t help our clients enough . . . I about had it! My fellow co-workers how do u feel?”
While off-duty and using their own personal computers, the four affected co-workers responded by generally objecting to Cruz’s assertions. Cruz countered, demanded that Cole cease lying about her, and complained to her supervisor, Iglesias, about the defamatory Facebook comments. After investigating Cruz’s complaint, Iglesias discharged Cole and the four other employees for their violation of the employer’s “zero tolerance” harassment and bullying policy.
Section 8(a)(1) of the National Labor Relations Act (the “NLRA”) makes it unlawful “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7,” which provides employees the right “to engage in  concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. §§ 157-158. In determining whether the employer’s discharge of the five employees violated section 8(a)(1) of the NLRA, the NLRB focused on whether (1) the employee engaged in a “concerted” activity within the meaning of section 7 of the NLRA; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the NLRA; and (4) the discipline or discharge was motivated by the employee’s concerted activity. Meyers Indus., Inc., Case 7-CA-17207, 268 NLRB 493, 497 (1984).
The employer did not dispute the second and fourth elements because Cruz gave a printout copy of the Facebook postings to Iglesias before the terminations occurred and the postings were the basis for the terminations. Accordingly, the NLRB concentrated only on the first and third elements, whether the employees engaged in a protected, concerted activity under the NLRA. The NLRB ruled that the employees’ Facebook postings were a “concerted activity” because they had a “clear ‘mutual aid’ objective of preparing . . . a group defense to [Cruz’s] complaints” and “they were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [Cruz] was going to make to management.” The NLRB also considered the Facebook postings protected based on its “long held” position that section 7 of the NLRA “protects employee discussions about their job performance.” Further, the NLRB found that the employer could not objectively construe the employees’ Facebook comments as “unprotected harassment and bullying of [Cruz], in violation of its ‘zero tolerance’ policy.” Therefore, the NLRB ruled that the termination of the employees based on their online commentary was unlawful and awarded the employees reinstatement and back wages.
Based on the NLRB’s decision in Hispanics United of Buffalo, Inc., all employers, regardless of whether their employees are represented by a union or not, need to be cautious when making employment decisions that concern an employee’s social media speech, including, but not limited to, any postings concerning an employee’s job performance. Finally, employers should consider consulting with an attorney to determine whether an employee’s social media speech is protected by the NLRA before making any employment decisions relating to such conduct.
Sources: 1) Mark Zuckerburg, Facebook Post (Oct. 4, 2012), available at http://www.facebook.com/zuck. 2) Hispanics United of Buffalo, Inc. and Ortiz, Case 03-CA-027872, 359 NLRB 37 (Dec. 14, 2012), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580e8c5f4. 3) National Labor Relations Act, 29 U.S.C. §§ 151-169. See 29 U.S.C. § 158 (unfair labor practices by employer). 4) Meyers Indus., Inc. and Prill, Case 7-CA-17207, 268 NLRB 493 (1984), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45800b8764.