Labor and Employment Law

NLRB Judge Holds Nonprofit Unlawfully Discharged Employees For Facebook Posts

A National Labor Relations Board Administrative Judge has found that a Buffalo nonprofit unlawfully discharged employees after they posted Facebook comments about working conditions including work load and staffing.  Click here for NLRB site announcement.  Following a co-worker's comments on Facebook criticising other employees for not doing enough to help the nonprofit's clients, the other employees responded by defending their job performance and criticizing working conditions, work load and staffing.  The nonprofit terminated the employment of five responding employees claiming that their comments were harassment of the original posting employee.

The ALJ issued his September 2 Decision, holding that the employees' facebook discussion was protected activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among co-workers about their terms and conditions of employment, including their job performance and staffing levels, and that the employees did not engage in any conduct that forfeited their protections under the Act.  The ALJ ordered the nonprofit to reinstate the employees and awarded them backpay for unlawfully discharged.

The NLRB has been receiving an increasing number of claims relating to actions and allegations involving social media issues.  See NLRB Office of the General Counsel, Division of Operations-Management, Memorandum OM 11-74 August 18, 2011.  Click here for NLRB announcement and link to the Memorandum.

Employees who are covered by the National Labor Relations Act have certain  rights to join together to improve their wages and working conditions.  Some of the rights apply within the context of a union or union activities.  Some of the rights apply with or without a union.  For example, outside the context of a union, the Act protects the rights of employees to engage in "protected concerted activity," such as when two or more employees take action for their mutual aid or protection regarding terms or conditions of employment.  A single employee can also engage in protected concerted activity when he or she is acting on the authority or at the request of other employees such as presenting group complaints to the employer, or promoting or preparing for group action.  A couple of examples of non-union related concerted activities: employees speaking about pay or addressing that issue with their employer; and employees discussing non-pay work related issues such as workplace conditions or safety, or addressing those issues with their employer.

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