Facebook Firings and the NLRB - When Are Posts Protected Activity?
On December 19, 2012, the Board issued their decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37, holding that the employer had unlawfully fired five employees for posts and comments to Facebook about a co-worker who told them that she was going to complain to management about their work performance.
The employees involved all worked at Hispanics United of Buffalo, Inc. (HUB), which is a not-for-profit corporation which renders social services to its economically disadvantaged clients in Buffalo, New York.
According to the opinion, employee Lydia Cruz-Moore sent another employee, Marianna Cole-Rivera a text message on Saturday, October 9, 2010, a non-workday, stating that she was going to discuss her concerns about employees' performance with Executive Director Lourdes Iglesias. Cole-Rivera responded by text asking whether she really "wanted Lourdes to know . . . how u feel we don't do our job. . ."
Cole-Rivera then took to Facebook to vent her frustrations. She posted on her own Facebook page: "Lydia Cruz, a coworker feels that we don't help ourclients enough at [HUB]. I about had it! My fellow coworkers how do u feel?" Cole-Rivera was at home and used her home computer to post the message.
Four other employees, also not on duty, posted messages on Cole-Rivera's page, objecting to Cruz-Moore's characterization of their performance. They, like Cole-Rivera, also used their personal computers to post their messages. Cruz-Moore then posted, "stop with ur lies about me."
Cruz-Moore complained to her supervisor, Iglesias, and showed him printed copies of the Facebook postings. Iglesias fired Cole-Rivera and the other four employees stating that "their remarks constituted 'bullying and harassment' of a coworker and violated the HUB's "zero tolerance" policy prohibiting such conduct.
Recognizing that "the employees' mode of communicating their workplace concerns might be novel," the Board made clear that established law still applied. Two cases referred to Meyers I and Meyers II, provided the framework to analyze the instant case.
When Firing An Employee Violates the National Labor Relations Act
In Meyers I, the Board held that the discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established:
(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 motiv ated by the employee's protected, concerted activity.
The Board concluded that the first and third elements were the ones at issue.
What is Concerted Activity?
The Board first defined concerted activity in Meyers I as that which is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." In Meyers II, the Board expanded this definition to include those "circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management."
The Board had little difficulty in finding that the Facebook postings were concerted activities, and were thus protected by the Act.
Finding that the Cole-Rivera alerted her fellow employees of another employee's complaints about their performance, that she asked for their input, and that the other employees joined her with comments of protest, the Board determined that they had "made common cause with her." Further, under the expanded definition of Meyers II, the employees "were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management."
When is Concerted Activity Protected by the Act?
The Board also had no difficulty in finding that the concerted activity was protected by the Act.
"The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject."
HUB claimed that its firing decision was justified because the Facebook posts violated their "zero-tolerance" anti-harassment and bullying policy. The Board rejected that argument outright, finding that the comments did not constitute bullying or harassment. Secondly, the Board determined that application of HUB's policy would violate the law. "Legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity."
For those reasons, and because there was no dispute that the employees were fired solely because of the Facebook postings, the Board found that their terminations were unlawful violations of the Act.
As is clear from the Hispanics United decision, in the context of social media posts about employment conditions, the medium of delivery is not important. Established law applies to protect employees' rights under the Act, provided the criteria set forth in Myers I and II are demonstrated.
Moreover, not only is it important to understand when social media posts may or may not be the basis for terminating an employee, counsel must know when reliance on company policy is inappropriate, as was the case here.
Anne O'Donnell is a recovering litigator who is now currently a Senior Writer for legal professional content at Findlaw.com. She practiced for 10 years in civil litigation in San Francisco.