Do you ever discuss work with co-worker friends on Facebook or other social media sites? Or, if you’re an employer, do you worry about what your employees may post about work on their Facebook pages—even when they do so from home after hours?
If so, you’ll be interested to learn that the National Labor Relations Board (NLRB) decided last month that an employer broke employment law by firing 5 employees for discussing a sixth co-worker’s complaints about them on their Facebook pages. That sixth employee had shown printouts of the postings to the employer, who decided the postings violated its zero tolerance policy against bullying and harassment. NLRB disagreed about the bullying, and also decided the postings were legally protected “concerted action” under the National Labor Relations Act (Hispanics United of Buffalo, Inc. and Carlos Ortiz, 12/14/12).
Here’s a more detailed summary of the conflict, as NLRB ultimately saw it:
Marianna Cole-Rivera and Lydia Cruz-Moore were employed by Hispanics United of Buffalo (HUB) to assist victims of domestic violence. They communicated frequently with each other by phone and text messages during and after work. Cruz-Moore often criticized other employees during these communications, particularly housing department employees she asserted did not provide timely and adequate assistance to clients. One Saturday, Cruz-Moore texted Cole-Rivera, stating her intention to discuss her concerns regarding employee performance with their employer’s Executive Director. Cruz-Moore texted back, concerned about escalating the discussions to that level, and then used her personal computer to post the following message on her Facebook page:
"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?"
Four other off-duty employees responded by posting messages, via their personal computers, on Cole-Rivera’s Facebook page. All NLRB tells us is that “the employees’ responses generally objected to the assertion that their work performance was substandard.” However, Cruz-Moore also responded, demanding that Cole-Rivera “stop with ur lies about me.” She then complained to the Executive Director, saying she’d been slandered and defamed, and provided printouts of the offending postings.
That Monday, the Executive Director fired all five of the offending employees, stating that the postings constituted “bullying and harassment” of a coworker in violation of HUB’s “zero tolerance” policy prohibiting such conduct.
Mutual Aid or Protection
The fired employees complained to the NLRB staff, who charged HUB with violating NLRA prohibitions against termination of employees who engage in legally-protected “concerted activity for the purpose of collective bargaining or other mutual aid or protection” (under NLRA Act Section 7; 29 U.S.C. 157). HUB defended its right to fire at-will employees for violating its policies, and argued that the online discussions did not amount to NLRA-protected “concerted activity.” NLRB’s administrative law judge (ALJ) ruled against HUB and for the ex-employees, and three of the four sitting NLRB board members agreed.
The majority retraced years of NLRB decisions, holding consistently that discussions about job-related mutual concerns were “concerted activity”, even if job security was not mentioned explicitly, and whether or not formal action—classically by a union responding to wages or working conditions—subsequently took place. The ALJ and the NLRB members also declined to support HUB’s argument that its anti-bullying policy had been violated, finding at most a “subjective” reaction by Cruz-Moore to discussions among the fired employees that did not amount to bullying or harassment.
Finally, all the decision makers agreed that job-related postings by co-workers, even those made from personal computers outside working hours, can trigger NLRA protections. This determination complements other NLRB decisions affirming an employee’s right to be free from job-related consequences for their online postings, including one I wrote about in my earlier blog regarding employer prohibitions against social media postings that “damage the Company, defame any individual or damage any person’s reputation, or violate [Company] policies.”
Whether you agree or disagree with NLRB’s decision, if your organization monitors employees’ use of social and electronic media, or is even willing to consider postings relevant to employment-related actions, you should consider whether such policies comply with the National Labor Relations Act. The following checklist should help you think about these questions.
Implementation Checklist
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Does my organization have formal policies governing employees’ organization-related postings on social and other electronic media?
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Do these policies prohibit any or all of the following:
- posting that might defame the organization or any individual?
- posting that might damage the organization or any individual’s reputation?
- posting that might constitute bullying, harassment, or workplace violence?
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Do these policies discourage any or all of the following:
- posting that might defame the organization or any individual?
- posting that might damage the organization or any individual’s reputation?
- posting that might constitute bullying, harassment, or workplace violence?
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Do any of the organization’s employee management or disciplinary policies:
- state that the organization will consider information from social media in making disciplinary decisions?
- state that the organization may consider information from social media in making disciplinary decisions?
- state that the organization will not consider information from social media in making disciplinary decisions?
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Do these policies provide any explicit exception for postings that may be legally-protected communication by the employee, under the National Labor Relations Act and/or other legal frameworks?
Where can I go for more information?
NLRB has posted cast materials including this decision, Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case 03–CA–027872
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Workplace Violence Prevention: A Practical Guide to Security on the Job, Securities Law: A Guide to the 1933 and 1934 Acts and Directors' and Officers' Liability.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.