Finally - A Ruling From The NLRB
It has been almost a year since the first NLRB “Facebook firing” case was filed in Connecticut. Since then, we have tried to predict the future and interpret the meaning of various settlement agreements and informal advice memoranda spurred from subsequent complaints. Now, for the first time, an Administrative Law Judge (“ALJ”) has issued a decision after a hearing in a case involving the termination of employees for Facebook posts.
Back on May 20th, I blogged about In re: Hispanics United of Buffalo, Inc. which arose from the termination of five employees who engaged in a conversation on Facebook that started with: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do you feel?” A discussion among co-workers ensued, which included some derogatory remarks toward another coworker. Three days after the initial post, the company terminated the posting employees on the ground that “the posts constituted bullying and harassment and violated HUB’s policy on harassment.”
A hearing was held on July 13th-15th, and the ALJ has determined that the employees were fired in violation of their rights to engage in concerted activity. Of note:
“Individual action is concerted so long as it is engaged in with the object of initiating or inducing group action. . . . 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. It is irrelevant to this case that the [employees] were not trying to change their working conditions and that they did not communicate their concerns to [the company]. . . . Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by [the Act].”
Employer Take Away: What should you as an employer take away from this development?
This post-hearing decision, while novel, is not terribly surprising, particularly in light of what we have seen from the NLRB over the past year. The facts here appear to be on one extreme side of the spectrum, where you have more than just an individual ranting about more than just a personal dispute, and a “concerted” discussion being had about general job conditions. Still, this decision does suggest that “concerted activity” protection will trump certain general employment policies maintained by an employer, particularly when there is an insufficient showing that employee conduct in violation of such policies was truly significant.
So for now, you should continue to take a “wait and see” approach, as this decision may find its way through the appeals process, and other decisions start to trickle in. In the meantime, however, you should also continue to exercise caution and good judgment when basing an employment decision on social media activity, in light of the NLRB’s continued broad and expansive view of concerted activity when it comes to social media activity.