NLRB Requires Employer to Rehire and Provide Backpay to Employees Terminated for Derogatory Comments Made About Co-Worker on Facebook

In a first-of-its-kind ruling, on September 2, 2011, the National Labor Relations Board (NLRB) required an employer to rehire five workers it had fired after the workers posted comments about a co-worker and their employment with the company on Facebook. As part of its decision, an Administrative Law Judge with the NLRB found that the Facebook communications were a “concerted activity” that were protected by the National Labor Relations Act (the “Act”).

The five employees now ordered to be reinstated all worked for Hispanics United of Buffalo, Inc. (HUB), a non-profit that provides social services to its economically disadvantaged clients in the Hispanic community of Buffalo, New York. The events were initiated by one of the five employees, when she made an off-hours posting on Facebook on a Saturday, in response to criticisms from another HUB employee named Lydia Cruz. Specifically, the employee posted on Facebook that “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?” The other four employees responded through Facebook postings, by making such comments as “What the Hell, we don't have a life as is, What else can we do???” and “What the f. .. Try doing my job.” Other individuals not implicated in this case also posted Facebook comments as well. 

Prompt action was taken after the Facebook postings were made. Cruz saw the posts and complained to HUB’s Executive Director, attempting to prompt HUB to terminate or at least discipline the Facebook posters. As a result, the immediately following Tuesday (just three days after the initial comments were posted), each of the five posters was terminated by HUB, following individual meetings with the Executive Director. During those meetings, the employees were told that Cruz had suffered a heart attack as a result of the Facebook comments, requiring HUB to have to pay Cruz compensation, and that the posts constituted bullying and harassment that violated HUB’s policies against harassment. 

The Administrative Law Judge hearing the matter, Arthur J. Amchan, rejected HUB’s rationale for the terminations, finding that these reasons were unconvincing. In so ruling, Judge Amchan found that it was unclear whether Cruz actually had a heart attack and there was no evidence tying her health to the Facebook posts. Further, he held that the Facebook postings did not fall under any of the categories covered under HUB’s anti-harassment policies, which involved harassment based on gender and race, and other protected classes. Lastly, Judge Amchan found that the employees had not engaged in any other misconduct that would justify denying them the protections of the National Labor Relations Act. 

Of particular interest is Judge Amchan’s reasoning underlying his conclusion that the employees had engaged in “protected concerted activity” and why the terminations were unlawful under the Act. Notably, the Judge found it irrelevant that the workers were not trying to change their working conditions, that they did not communicate their concerns to HUB, and that there was no express evidence that the employees intended to take further organizing action. Yet, notwithstanding those facts, Judge Amchan concluded that employees simply “have a protected right to discuss matters affecting their employment amongst themselves.” Citing prior NLRB decisions that placed protections on employee discussions regarding the terms and conditions of their employment, Judge Amchan found that the National Labor Relations Act also protected these five workers’ Facebook discussions about criticisms of their job performance. Based on these findings, he ruled that HUB must offer all five employees reinstatement as well as backpay compensation with interest. 

This case provides the first written decision addressing the recent attention-grabbing issue of the NLRB’s role in Facebook disputes. Since it sets forth some details of the rationale for the NLRB to rule in favor of employees, it provides valuable guidance to employers on the substantial risks involved in disciplining or terminating employees for postings on social media websites. 

In light of this ruling, employers should exercise particular caution when making employment decisions based on employee activity on social media websites. As this decision shows, even employees’ general complaints about their employment or about their co-workers can be held to fall under the National Labor Relations Act’s purview and be considered “protected activity.” As a result, employers potentially risk liability any time they terminate or discipline employees for engaging in off-hours social media activity, unless they can adequately demonstrate that the disciplined employee engaged in misconduct relating to the activity or can point to a specific policy that truly prohibits the performed activity.