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NLRB Says Terminations Based on Facebook Complaints Over Co-Worker's Criticism Violated Labor Laws

    Client Alerts
  • January 11, 2013

Last month, the National Labor Relations Board released its latest in a string of decisions granting employees expansive protections from employer action based on social media complaints about issues affecting the work environment. Hispanics United of Buffalo, Inc. involved NLRB complaints by four employees who were fired for Facebook comments made with regard to a co-worker. The co-worker had criticized the employees' work performance, and had threatened to raise these issues with management.

One of the employees who was the subject of this criticism used her personal Facebook page to solicit comments from her colleagues about the unfairness of the criticism, and their co-worker's motivation for raising these issues. The complaining employee took these comments to the employer, which terminated the four employees based on alleged harassment of their co-worker.

The NLRB concluded that the Facebook comments were protected concerted activity among the terminated employees, and that the employer had illegally terminated the plaintiffs in retaliation for this protected activity. The Board stated that the Facebook comments were made by the plaintiffs for mutual aid or protection against their co-worker's threats. It was a first step in protecting themselves against what they saw as a threat to their employment.

The NLRB also held that the Facebook comments could not be considered harassment under the employer's policies. A dissenting Board member sharply criticized the majority decision, characterizing the plaintiffs' postings as nothing more than "group griping." He noted that the employees did not discuss any action or strategy beyond their dissatisfaction over their work being criticized.

This decision confirms that a majority of the NLRB continues to view social media interaction among employees as protected concerted activity under the NLRA, even where there is no discussion of any intent to raise specific grievances with employers. Despite employers' concerns over the public nature of such criticism, they should carefully consider the legal ramifications prior to taking disciplinary action against employees for Facebook or similar postings.