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by Joseph U. Leonoro
As we have discussed before on this blog, the National
Labor Relations Board ("NLRB") is focusing much attention on social
media. In particular, several complaints have been filed recently that
allege that employers have retaliated against employees who have used social
media to engage in activity that is protected by the National Labor Relations
Act ("NLRA"). In Hispanics United of Buffalo, Inc. v. Ortiz, on
September 2, 2011, an Administrative Law Judge ("ALJ") with the NLRB Division
of Judges found that employees' Facebook postings regarding their employment
was protected, concerted activity and that their employer terminated their
employment in retaliation for engaging in the protected activity.
Hispanic United of Buffalo, Inc. ('HUB"), which is a
non-profit corporation that provides services to the economically
disadvantaged, was accused of discharging employees in retaliation for their
participation in concerted activity under the NLRA. The case started
after an employee made a Facebook posting about a domestic violence advocate
who worked at HUB one day per week. The domestic violence advocate was
often critical about the job performance of HUB employees. Following a
critical comment, one of HUB's employees made a Facebook posting from her home
stating that the domestic violence advocate "feels that we don't help our
clients" and asking her coworkers how they felt. Several coworkers
responded to the posting. The responsive postings were critical of the
domestic violence advocate, and some included profanity. All of the
postings were made away from the workplace.
The domestic violence advocate then complained to HUB's
executive director about the Facebook postings. The executive director
terminated the employment of five of the employees who had made the Facebook
postings on the grounds that the postings constituted harassment and bullying
in violation of HUB's policies. The executive director also informed the
employees that the domestic violence advocate had suffered a heart attack as a
result of the postings.
The NLRA makes it illegal to interfere with, restrain, or
coerce employees in the exercise of their rights under Section 7 of the
NLRA. This Section specifically grants employees "the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activity for the purpose of collective bargaining or other
mutual aid or protection[.]" The issue in this case was whether the
postings on Facebook constituted protective activity.
The ALJ concluded that the conduct was protected.
Applying previous decisions, he found that activity does not need to have the
goal of changing working conditions to be protected. Rather, as was the
case here, discussions about criticisms of employees' job performance are
protected. In addition, the ALJ found that the employees were taking the
first step towards taking group action to respond against the domestic violence
advocate's accusations, which they thought she may take to management.
Further, the fact that the five employees were terminated at the same time
showed that HUB viewed them as a group and that their activity was concerted.
The ALJ also considered whether the postings were such
that the employees may have forfeited their protection under the NLRA.
The ALJ considered four factors: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the employee's outburst;
and (4) whether the outburst was, in any way, provoked by the employer's unfair
labor practice. The ALJ found that the factors weighed in favor of the
employees because (1) the Facebook postings were made outside of work and not
during working hours; (2) the subject of the posts were related to a coworker's
criticism of employees' job performance; (3) there were no outbursts inasmuch
as some of the posts did not mention the domestic violence advocate and none
mentioned HUB; and (4) the fourth factor was not relevant.
The ALJ also found that there was no evidence that the
employees violated HUB's anti-harassment policies. Further, the ALJ found
that the discharges were not justified because of the heart attack as there was
no evidence showing a nexus between the heart attack and the Facebook
posts. As a result, the ALJ ordered that the employees be reinstated with
Thus, employers must be aware of the fact that
discussions on social media, including those that are made away from the
employer's computers and off working hours, can have significant
implications. An informal discussion between a small group of employees
about a coworker can be considered concerted activity that is protected by the
NLRA. Thus, when employers become aware of such discussions, they must be
careful in how they respond to the same.
Bear in mind that employers may have substantial and
legitimate business reasons that outweigh employee Section 7 rights that will
justify reacting to employee activity. Medeco Sec. Locks, Inc. v.
NLRB, 142 F.3d 733, 745 (4th Cir. 1998); Peyton Packing Co.,
49 NLRB No. 119 (1943). Employers may make and enforce reasonable rules
covering the conduct of employees on company time. Employers have the
right to maintain their premises, operations, and production in an orderly,
efficient fashion and to discharge disruptive or violent employees or prohibit
conversation that is contentious and emotionally charged. The employer,
however, bears the burden of proving justification of its actions which the
employer in this case failed to do.
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