Facebook and the NLRB
I blogged several weeks ago about a spate of NLRB cases concerning employee use of Facebook. The cases were very fact specific and left employers swimming in murky water. We now have a ruling from an Federal Administrative Law Judge finding a Buffalo, New York nonprofit unlawfully discharged five employees after they made Facebook posts, critical of the employer. The waters are beginning to clear.
The case involved Hispanics United of Buffalo, a nonprofit organization providing social services to low-income clients. A co-worker criticized other employees for not doing enough to assist clients, and posted the criticism to her Facebook page. Other employees responded, defending their work performance and criticizing working conditions, work load, and staffing levels. Hispanics United then discharged the five employees who responded to the Facebook criticism, claiming they had harassed the employee who originated the post on Facebook. The NLRB filed a Section 7 charge claiming the Facebook discussion was protected concerted activity.
The Administrative Law Judge agreed with the NLRB, finding the Facebook conversation involved employee conversations about terms and conditions of employment, including work performance and staffing levels. The five employees were reinstated with back-pay, and Hispanics United was ordered to post a notice in the workplace concerning employee rights under the NLRA. Hispanics United has the ability to appeal to the NLRB Board in Washington, D.C.
Facebook has becom the modern day version of the water-cooler. While it may be employee-friendly, employers should proceed with Facebook cases with great caution. The trend developing suggests the NLRB and Administrative Law Judges are leaning in favor of finding employee use of Facebook to be protected concerted activity.
