Facebook Firings – An Old Approach to the New Issue of the Virtual Water Cooler

The National Labor Relations Board (“Board”) issued its second decision on a firing over Facebook posts on Wednesday, December 19, 2012.  The Board, avowing its commitment to the idea that speech on a personal, non-work-related social media outlet should be treated the same way as discussions on work premises, ordered a non-profit organization to reinstate five employees who were fired over Facebook posts.  In a 3-1 decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37, 12/14/12 [released 12/19/12], the Board affirmed the administrative law judge’s ruling that the employer violated the National Labor Relations Act (“NLRA”) when it terminated five employees for posting Facebook comments in response to a co-worker’s criticism of their job performance.

While noting that at issue was a novel mode of employee communication, the Board agreed with the ALJ that the appropriate analytical framework for resolving the discharge dispute had long been settled under Meyers Industries and its progeny.[1]  Under the Meyers Industries analysis, an employee’s discipline or discharge is unlawful if it is motivated by an employee’s concerted, NLRA-protected activity and if the employer knows the activity was concerted.  The underlying ALJ ruling in Ortiz v. Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (NLRB Sept. 2, 2011) issued a landmark decision when it marked the first time a Board judge had ruled on a social media-related employment decision.

Member Brian E. Hayes, the sole dissenter and Republican board member, disagreed with the majority view that the employees’ comments were made for mutual aid and protection.  However, writing shortly before his term on the board ended Dec. 16, he agreed that the Meyers Industries framework was the right analysis to use for evaluating whether the activity on Facebook is protected and concerted.  In light of this decision, it is clear that concerted activity is protected whether spoken in the workplace or via the virtual water cooler.  Even with the difference in type and style of communication used in social media outlets, the Board is not adopting any new rules or framework within which to evaluate the speech.

Additionally, this decision serves as a warning to employers who have been using their policies to justify adverse employment actions when faced with potentially protected activity.  The Board majority in this case rejected the employer’s defense that these five employees had violated its zero-tolerance policy on bullying and harassment when they disagreed with another co-worker that the company was not doing enough to help its clients.  The Board held that the employees were taking a first step toward group action to defend themselves against another co-worker’s accusations made to management and hence, was protected, concerted activity.  Employers who seek to discipline an employee for comments he or she makes on social media sources must therefore not merely rely on their policy, but they must also ensure that their policy is valid in that, among other things, it does not discourage protected, concerted activity.

[1]  Meyers Industries, 268 NLRB 493 (1983), remanded sub nom.  Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom.  Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

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