Nonprofit Must Rehire Employees Axed for Facebook Complaints
In the first decision of its kind, a National Labor Relations Board (“NLRB” or the “Board”) Administrative Law Judge recently ruled on September 2, 2011 that a nonprofit organization unlawfully discharged employees for complaining about their jobs on Facebook. As we have previously discussed on our blog, the NLRB has been very aggressive in enforcing employees' right to engage in work-related discussions on social media. This is the first case involving Facebook that resulted in an ALJ decision following a hearing. Unlike prior NLRB enforcement actions, this case did not target the organization’s social media policy or involve a unionized workplace.
According to the NLRB decision, the employer Hispanics United of Buffalo fired five employees for criticizing work conditions on a Facebook comment thread. After one of the employees notified the NLRB regional office, NLRB Regional Director Rhonda Ley issued a complaint alleging that Hispanics United conducted unfair labor practices in violation of the National Labor Relations Act by “interfering with, restraining, and coercing employees in the exercise of rights” guaranteed in Section 7 of the NLRA. Section 7 provides in part that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB has interpreted Section 7 rights to apply to both unionized and non-unionized personnel.
Judge Arthur Amchan found that the employees’ were illegally discharged because the Facebook discussion was concerted activity protected under Section 7 of the NLRA. The discussion was protected because it involved a conversation among coworkers about their terms and conditions of employment. Although Hispanics United argued (in part) that the Facebook comments were not protected because persons other than Hispanics United employees may have seen them, Judge Amchan found that “irrelevant” as the first comment in the thread specifically “asked for responses from co-workers.” Furthermore, “just as the protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing” Judge Amchan noted, “it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.” The judge determined that the employees had not engaged in any conduct that could have forfeited their Section 7 rights. According to the decision, the comments were related to subject matter the employees had a protected right to discuss, there were no “outbursts,” and the employees had not violated any Hispanic United policies or rules. Although Hispanics United asserted that the employees’ conduct constituted harassment of an employee named on the Facebook comment thread in violation of its “zero tolerance” harassment policy, Judge Amchan found no evidence in the record supporting Hispanics United’s position.
In a first for a case involving employees' rights in the context of social media, the NLRB judge ordered Hispanics United to reinstate the five employees and awarded the employees back pay. Hispanics United was also ordered to “cease and desist from discharging its employees due to their engaging in protected concerted activities” and to post a notice at its Buffalo facility concerning employee rights under the NLRA and the organization's violations of those rights.
On the heels of the NLRB report on social media enforcement, this ruling provides further guidance to employers regarding the NLRB's application of Section 7 to social media and the growing number of NLRB's social media enforcement actions. As we noted both in the context of discussing the NLRB’s recent enforcement actions and the agency's social media report, employers should carefully review and adjust their communications and social media practices and policies to comply with the NLRB's guidance on employees' Section 7 rights.