Next to the South Carolina Boeing matter, employee Facebook postings present perhaps the most controversial position recently adopted by the National Labor Relations Board. In hearings earlier this year and in expressions of enforcement intent, the NLRB has taken the view that employee postings on Facebook that are critical of employers, co-workers, or working conditions are presumed to be protected behavior under the NLRA absent evidence of harassing or discriminatory behavior.

In the first decision by a federal Administrative Law Judge on this topic, a New York employer was ordered to reinstate and pay back wages to five employees fired after posting critical Facebook comments regarding a co-worker. In Hispanics United of Buffalo Inc., an employee used her personal Facebook page to complain about criticisms made by the co-worker about her and other employees' work. Four other employees posted comments supporting the criticism. The employer terminated all five employees for bullying the co-worker and for violating the organization's anti-harassment policy.

The ALJ concluded that these terminations violated Section 8(a)(1) of the NLRA, which protects concerted activity by employees. If employees have the right to band together to complain about working conditions, this right extends to Facebook postings, regardless of the more public nature of this forum. The ALJ rejected the employer's claim of harassment, because there was no evidence that the target of the criticism was harmed in any way. Also, the employer never replaced any of the five employees, leading to the conclusion that it used the comments as a pretext to reduce the workforce.

While truly harassing, abusive, bullying or intimidating Facebook postings can form the basis for disciplinary action, the NLRB is clearly placing a high burden on employers to prove that the comments exceed legitimate criticism over working conditions. Employers should consult with legal counsel before taking adverse action against employees based on social media use.