NLRB Administrative Law Judge Reinstates Five Employees Terminated for Facebook Posts

An administrative law judge for the National Labor Relations Board (“NLRB” or “the Board”) ruled that a non-profit social services organization violated federal labor law when it terminated five employees for making Facebook posts from their home computers in which they criticized a coworker. Hispanics United of Buffalo, Inc. & Carlos Ortiz, Case No. 3-CA-27872, is the first case decided by an administrative law judge among the NLRB’s recent wave of complaints related to employers’ social-media related practices and policies.

The NLRB alleged in its May 9, 2011 complaint that Hispanics United of Buffalo, Inc., (“HUB”) violated Section 7 of the National Labor Relations Act (“NLRA”). Section 7 gives workers the right to communicate with each other about wages, hours and other terms and conditions of employment. Section 7’s protections extend to both union and non-union employees.

Hispanics United of Buffalo involved several non-union employees who complained about a coworker on Facebook. In May 2010, HUB hired Lydia Cruz-Moore, a domestic violence advocate who worked one day per week at HUB’s offices. Cruz-Moore complained about the job performance of some of her co-workers to another employee, Mariana Cole-Rivera. Cruz-Moore also told Cole-Rivera that she was going to discuss her concerns about the other employees’ job performance with management.

From her home computer, Cole-Rivera posted on her Facebook page that Cruz-Moore believed HUB employees “don’t help [their] clients enough” and asked her coworkers “how do u feel?” In response, several employees posted complaints about Cruz-Moore’s criticisms, some of which included profanity. Three days later, Cole-Rivera and four of the other employees who posted on Facebook were fired for bullying Cruz-Moore and violating HUB’s “zero tolerance” anti-harassment policy.

Administrative Law Judge (“ALJ”) Arthur J. Amchan found that Cole-Rivera’s and her coworkers’ discussions on Facebook were protected concerted activity and, therefore, that their terminations violated the NLRA. ALJ Amchan held that the Facebook discussions concerned the terms and conditions of employment, namely, that Cole-Rivera and her co-workers were talking about criticisms of their job performance that they believed Cruz-Moore would report to management. Additionally, the ALJ found that the activity was concerted because “the discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations . . . .” Finally, the ALJ decided that the employees did not engage in conduct which forfeited the protection of the NLRA, and that the employer failed to establish that the five employees violated the “zero tolerance” anti-harassment policy. Accordingly, he ordered HUB to reinstate all five employees with backpay and benefits.

HUB will now have to decide whether to accept ALJ Amchan’s decision and reinstate the five employees with backpay and benefits, or file an appeal with the NLRB. With the expiration of former Chair Wilma Liebman’s term on August 28, 2011, the Board currently has three members, and would likely affirm the ALJ’s pro-labor decision. If the NLRB adopts ALJ Amchan’s ruling in favor of the five employees, HUB would then have to decide whether to appeal to federal court. Employers nationwide will undoubtedly hope for HUB to appeal a decision that could have serious implications for employers’ social media policies and practices.

Hispanics United of Buffalo highlights employers’ need to review their social media policies and practices to determine their impact on employees’ rights under the NLRA. The decision also underscores how employers should consult with an experienced labor and employment lawyer before making disciplinary decisions involving social media use. Finally, this case serves as a reminder to all private sector employers that the NLRA protects both union and non-union employees, and that the NLRB will not hesitate to file complaints against employers with non-union workforces.