First Of Its Kind NLRB Facebook Decision: NLRB Judge Finds Employer Unlawfully Disciplined Employees' Facebook Conversations
October, 2011
Response to Facebook Criticism That Co-Workers Did Not Do Enough Is Protected
The NLRB continues its recent dominance in the news. On September 2, 2011, in a decision with both union and non-union implications, an NLRB Administrative Law Judge in New York found that an employer unlawfully discharged five employees after they posted comments on Facebook in response to a co-worker's criticism that employees did not work enough.
The employer, Hispanics United, is a not-for-profit organization that provides social services to low income clients. However, the decision will apply in the for-profit employment sector as well. In the Hispanics United case, an employee criticized other employees for not doing enough to help the organization's clients. Co-workers read the criticism on Facebook and responded by defending their job performance and, in turn, criticized working conditions, including work load and staffing issues. The employer discharged the five employees because their comments had constituted harassment against the employee who had criticized coworkers for not doing enough to help its clients.
The Judge found that the five employees had engaged in a conversation among co-workers which was "protected concerted activity" because they posted Facebook comments about working conditions. The Judge ordered the employer to reinstate the five employees and awarded the five employees backpay. The employer also was ordered to post a notice at its facility which lists employee rights under the National Labor Relations Act and the violations which the Judge found.
The employer does have a right to appeal to the NLRB in Washington, D.C. However, while this is the first of its kind decision by an NLRB Judge, there has been considerable amount of earlier activity by the NLRB. Read on . . .
The Employer's Dilemma When Employees Post Criticisms on the Internet
The NLRB actively has been pursuing employers for alleged Facebook and other Internet violations - even if the employer is non-union. Listed here are other actions taken by the NLRB and an Advisory Opinion issued by its NLRB's General Counsel's Office:
- Sales Staffs' Unhappiness With The Quality Of Food At Promotional Event Is Protected (May, 2011). The NLRB issued a complaint against Knauz BMW, a Chicago area car dealership when it terminated an employee for posting photos and comments on Facebook criticizing the dealership. The employee, a salesman, posted photos of the hot dogs and bottled water which had been served at a sales promotional event and stated that was not the type of thing that the employer should be offering to promote BMW cars. Co-workers chimed in and complained that their sales commissions could suffer as a result. NLRB issued the complaint because the conduct purportedly was a discussion regarding terms and conditions of work, i.e. commissions, and was protected, concerted activity under the National Labor Relations Act.
- Facebook Conversation About A Client's Mental Condition Not Protected (July, 2011). An employee of a not-for-profit residential facility for homeless people, who suffer mental illness and substance abuse, was having a conversation with a friend on Facebook while working an overnight shift. The employee wrote that it was "spooky" at night at work and she was unsure if the client was laughing at her or at the voices she heard in her head. A former client of the employer saw the posting, reported it and the employee was terminated. On July 19, 2011, the NLRB's General Counsel issued an advisory that there was not evidence of protected, concerted activity because the employee had only posted the discussion with her friend, not with fellow employees and no coworkers responded.
- Not Answering NLRB Complaint Regarding Facebook (August, 2011). Last month, the NLRB entered a default judgment against Bay Sys Technologies, LLC. Previously the NLRB had issued a complaint when the employer fired an employee for posting comments on Facebook concerning working conditions. Initially, the employer had answered the NLRB's complaint, however, then the employer withdrew its answer to the complaint and did not re-file. As a result, the NLRB entered a default judgment and found that by failing to answer the complaint, the employer was deemed to have admitted the allegations as true. The NLRB ordered the employer to reinstate the employee, pay the employee for lost earnings and benefits and to remove from its files any negative references to the employee's discharge.
- • It is important to note that employers can exercise reasonable discipline when an employee makes comments on Facebook or elsewhere on the internet which are defamatory, disclose trade secrets, proprietary information, violate trade secrets or enforceable non-competition agreements for example.
- • However, comments between employees about terms and conditions of work generally are protected.
- • Specifically make the above distinction when disciplining.
- • The wave of recent NLRB activity does not change the above employer protections and the Advisory Opinion above points to a balanced approach.
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