NLRB: Discharge for Facebook Posts is Unlawful

​ In the first ruling of its kind, a National Labor Relations Board (NLRB) administrative law judge ruled that Hispanics United of Buffalo (HUB), a nonprofit organization, unlawfully discharged five employees for posting comments on Facebook in response to a coworker’s complaint about their job performance.

 According to the ruling, on October 9, 2010 an employee of HUB posted the following comment on her Facebook page in response to criticism from a coworker: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?” Several employees of HUB responded to the initial posting by defending their job performance and criticizing working conditions. On October 12, 2010 the Executive Director met individually with the five employees who had made the Facebook post and terminated them for violating the company’s harassment policies.
 
NLRB Regional Director Rhonda Ley alleged that HUB committed unfair labor practices by “interfering with, restraining, and coercing employees in the exercise of rights” guaranteed in Section 7 of the National Labor Relations Act (NLRA).
 
Administrative Law Judge Arthur Amchan found that the employees’ Facebook discussion was protected concerted activity within the meaning of Section 7, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. The judge also found that the employees did not engage in any conduct that would forfeit their protection under the NLRA.
 
Amchan ordered HUB to reinstate the five employees and awarded them back pay because they were unlawfully discharged. The decision also requires HUB to post a notice at its Buffalo facility notifying employees of their rights under the NLRA and providing details of the violations found.
 
“Employers must tread carefully when disciplining employees for statements about working conditions, whether verbal or online,” says MSEC attorney Euell Thomas. “But because the NLRB has made online media a priority, an employer should always consult counsel before disciplining an employee for online speech.”