In the NLRB's final act before the long Labor Day
weekend, an Administrative Law Judge in Buffalo, NY, issued his decision in Hispanics United-the first written decision in an NLRB
case involving social media to result in an ALJ decision following a hearing.
In Hispanics United, five employees claimed that
their terminations-on the heals of a Facebook discussion critical of another
employee's job performance-violated their rights under the National Labor
Relations Act to join together to discuss the terms and conditions of their
employment. The ALJ agreed:
I conclude that their Facebook communications with each
other, in reaction to a co-worker's criticisms of the manner in which HUB
employees performed their jobs, are protected.
The ALJ made several key observations about the Board's
treatment of social media posts as protected, concerted activity:
This case stands for the proposition that social websites
are akin to a digital water cooler. If you wouldn't discipline for water-cooler
talk, then you shouldn't for social media posts. The difference, though, is
that social websites leave a digital trail that makes them tempting fodder for
the types of retribution that will result in unfair labor practice charges.
Last month, the NLRB's Office of General Counsel began to
provide some clarity on when and how employees' social media activities are
protected. Hispanics United provides added clarity, and should give
employers added concern over their ability to regulate their employees' use of
social media inside and outside of the workplace. This case likely will now
head to Washington, DC, for disposition by the NLRB. Perhaps we will finally
receive some needed guidance from the Board on what has become a beguiling
issue for businesses.
(In the meantime, if you want to know about these issues,
pick up a copy of Think
Before You Click: Strategies for Managing Social Media in the Workplace).
Visit the Ohio Employer's Law Blog for more
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