NLRB Issues Complaint Against Non-Union Employer For Firing Employees Over Facebook Postings

On May 9, 2011, the National Labor Relations Board (NLRB) issued yet another complaint against a non-union employer who terminated five employees because of Facebook postings about work conditions. As we have discussed in several earlier alerts, the NLRB has taken an active role in promoting the rights of employees to discuss working conditions through social media.

In this latest case, an employee of Hispanics United of Buffalo, Inc. (Hispanics United), a non-profit organization, made a post claiming that the organization's employees were not doing enough to help its clients. Five other Hispanics United employees responded to the claim by engaging in an on-line discussion on Facebook that defended their job performance and criticized their working conditions. Afterward, Hispanics United concluded the Facebook postings amounted to harassment of the co-worker who posted the original statement and terminated the five responding employees.

In issuing the complaint, the NLRB determined that the Facebook discussion constituted protected concerted activity under Section 7 of the National Labor Relations Act (the Act) because it involved discussions between employees about their working conditions. The NLRB further stated in the complaint that Hispanics United violated federal labor laws because terminating the five employees "interfer[ed] with, restrain[ed] and coerc[ed] employees in exercise of [their] rights."

Section 7 of the Act gives employees, union or non-union, the right to engage in protected concerted activity. Generally, two or more employees acting together to address a collective employee concern about terms and conditions of employment is considered protected concerted activity. However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. Employers need to be aware of the Act's protections to employees who engage in protected concerted activity when contemplating taking disciplinary action against an employee. Because discerning what is, and is not, protected concerted activity is often difficult, employers are encouraged to call counsel prior to issuing any discipline to an employee based upon a social media posting.