By: Susan L. Swatski, Esq. ( / link to bio)

In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB released its first decision to examine protected, concerted activity involving Facebook. By a 3-1 vote, the Board held that the non-union employer committed an unfair labor practice by discharging five employees for responding to another employee’s criticism of their work performance on Facebook. The majority of the Board found that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the “water cooler.” “Although the employees’ mode of communicating their workplace concerns might be novel,” the Board concluded this activity was for “mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act (“NLRA”). The discharged employees received full reinstatement and backpay.

The facts of the case are common water cooler fodder. While not in the workplace and not on company time nor using a company computer, an employee (Cole-Rivera) criticized on Facebook the work performance of and comments made by another employee (Cruz-Moore). Cole-Rivera then asked her coworkers how they feel about the situation. Four of her co-workers responded on Facebook by agreeing with Cole-Rivera’s criticism. Cruz-Moore then complained to her employer’s executive director that she felt slandered by this exchange on Facebook. Her employer investigated the complaint by reviewing the Facebook posts. The next workday, the employer fired Cole-Rivera and the other four employees for “bullying and harassment” in violation of the employer’s “zero tolerance” policy.
The Board upheld an administrative law judge’s decision that the terminations violated the NLRA even though no union was involved because the postings were:
1. a “concerted” activity under the Act;
2. known to be concerted by the employer’s supervisor, who was shown the postings;
3. “protected” under the Act; and,
4. the motivation for the terminations.
The Board concluded that the postings constituted a “concerted” activity because they “implicitly manifest[ed]” that the co-workers’ postings had the “clear ‘mutual aid’ objective of preparing [the] coworkers for a group defense to [Cruz-Moore’s] complaints.” In so deciding, the Board rejected the employer’s argument that the employees’ Facebook posts lost any NLRA protections because they were a form of “harassment” or “bullying” in violation of company policy and found that the NLRA trumps any workplace bullying or harassment policy.
The dissenting Board member objected to the majority’s reasoning by emphasizing that “the mere fact that the subject of discussion involved an aspect of employment — i.e., job performance — is not enough to find concerted activity for mutual aid and protection. There is a meaningful distinction between sharing a common viewpoint and joining in a common cause.”
There is little reason to believe that the NLRB’s trend in directing its decisions to non-union employers will subside in 2013. As a result, whether you have a union or a non-union workforce, employers should review your social media policy with experienced employment/labor counsel as well as consult with counsel before making any adverse employment decision based on a social media-related issue.