In Hispanics United of Buffalo, Inc. the National Labor Relations Board (NLRB or Board) adopted an order of an administrative law judge that found an employer’s discharge of five employees for posting comments on Facebook violated the National Labor Relations Act (NLRA). This decision is another example of the Board and courts addressing legal issues arising out of contemporary social media by utilizing existing legal precedent, rather than creating a new body of law.
In this case, one employee was unhappy with the job performance of several other employees, and was intending on discussing her concerns with the executive director of the employer. When word of this got out, one of the five employees posted the following message on her Facebook page using her home computer:
Lydia Cruz, a coworker feels that we don’t help Our clients enough . . . . I about had it. My fellow coworkers how do u feel?
Four off-duty employees responded by posting messages using their personal computers generally objecting to the assertion that their work performance was substandard. Ms. Cruz then responded, demanding that the first employee “stop with ur lies about me.” Ms. Cruz reported the posts to the executive director, complaining that she had been slandered and defamed. The five employees were discharged, in part because it was felt that the remarks constituted bullying and harassment, and violated the employer’s “zero tolerance policy.”
Interestingly, the NLRB analyzed this fairly novel factual scenario under established case law. The Board discussed the Meyer I case and its progeny holding that the discharge of an employee violates NLRA Section 8(a) (1) if: (1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity. Only the first and third elements were in dispute in this case: whether the employees’ Facebook comments constituted concerted activity, and, if so, whether that activity was protected by the NLRA.
In applying the principles set forth in the Meyer line of cases, the Board found that there should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. The discharged employees had been alerted to the complaint of Ms. Cruz and they responded with comments of protest. The Board found that they “were taking a first step towards group action to defend themselves against the accusations they reasonably believe [Ms. Cruz] was going to make to management.”
With respect to the issue of whether the employee’s concerted activity was protected, the Board noted that it has long been held that Section 7 protects employee discussions about their job performance and the Facebook comments plainly centered on that subject. The Board found that the employees were responding to allegations that they were providing substandard service, and given that such criticism could have negative impact on their employment, they were “clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.”
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