|
September
13, 2011
National Labor Relations Board =
Finds
Employer Unlawfully Fired Five Employees for Facebook Postings and
Awards Reinstatement and Back Pay<=
/span>
By Kurt M. Gr=
aham
and L. Steven =
Platt
In the first decision by a National Labor Relations
Board ("NLRB" or "Board") Judge involving an
employee's posting on Facebook, an employer was ordered to reinst=
ate
five employees with full back pay after the Judge found the emplo=
yer
violated the National Labor Relations Act ("NLRA")
by firing the employees for postings they made in response to a
co-worker's criticism of their job performance. Hispanics Unit=
ed
of Buffalo, Inc., NLRB Case No. 3-CA-27872 (9/2/11). The Judge
found the employees' posted comments constituted concerted activi=
ty
protected by Section 8(a)(1) of the NLRA
which bars employers from interfering with the rights of employee=
s,
guaranteed by Section 7 of the NLRA t=
o engage
in concerted activity for their mutual aid or protection. <=
o:p>
A. What Did The Employees Post on Facebook?
Hispanics United of Buffalo ("HUB"), a
non-union, non-profit organization, hired Lydia Cruz-Moore as a
domestic violence advocate. She spent most of her work time
accompanying victims of domestic violence to court hearings. She
generally worked one day per week at the employer's offices where
other employees handled client service and support functions.
Cruz-Moore communicated with her co-workers via text message and =
was
often critical of her co-workers, accusing some of keeping clients
waiting or otherwise not doing their jobs. After Cruz-Moore annou=
nced
her intention to take her complaints to the Executive Director, a
co-worker, Marianna Cole-Rivera, posted a Saturday morning messag=
e on
her personal Facebook page stating "Lydia Cruz, a coworker f=
eels
that we don't help our clients enough at HUB. I about had it! My
fellow coworkers, how do u feel?"
Employees then added comments to Cole-Rivera's Faceb=
ook
page beginning with co-worker Damicela
Rodriguez who wrote "What the f...? Try doing my job. I have=
5
programs." Co-worker Ludimar Rod=
riguez
posted "What the Hell, we don't have a life as is, What else=
can
we do???". Yaritza Campos posted
"Tell her to come do [my] f---ing job
n c if I don't do enough, this is just dum
(sic)." Carlos Ortiz de Jesus posted "I think we should
give our paychecks to our clients so they can "pay" the
rent, also we can take them to their Dr's appts, and served (sic) as translators (oh!=
We do
that). Also we can clean their houses, we can go to DSS for them and we can run all their erran=
ds and
they can spend their day in their house watching tv,
and also we can go to their grocery shop and organized (sic) the =
food
in their house pantries. . . (insert sarcasm here now)."
Later in the same day, Cruz-Moore added her own comm=
ent,
"Marianna stop with ur lies abou=
t me.
I will b at HUB Tuesday." Cruz-M=
oore
then complained to the HUB Executive Director about the Facebook
postings, all of which were posted on the employees' personal
computers outside of work. Cruz-Moore later had a heart attack th=
at
she attributed to her co-workers' actions. Upon learning of the
postings, the Executive Director fired each of the employees beca=
use
they had bullied and harassed Cruz-Moore in violation of HUB's zero tolerance policy against harassm=
ent.
B. The Judge Finds The Employees' Facebook Postings =
Were
Protected By the NLRA.
The Judge framed the issue presented as "whethe=
r by
their postings on Facebook, the five employees engaged in activity
protected by the [NLRA]." The Ju=
dge
found the comments were protected and, in doing so, stated <=
/o:p>
"Employees have a protected right to discuss
matters affecting their employment amongst themselves. Explicit or
implicit criticism by a co-worker of the manner in which they are
performing their jobs is a subject about which employee discussio=
n is
protected by Section 7. That is particularly true in this case, w=
here
at least some of the discriminates had an expectation that Lydia
Cruz-Moore might take her criticisms to management. By terminating
the five discriminates for discussing Ms. Cruz-Moore's criticisms=
of
HUB employees' work, [HUB] violated Section 8(a)(1)." <=
/o:p>
The Judge also rejected HUB's
assertion that the employees had forfeited their protection under=
the
NLRA by engaging in misconduct, namely
bullying and harassing their co-worker, during the course of
otherwise protected activity. The Judge found that the discussions
were still protected because they took place outside of working
hours, related to a co-worker's criticisms of their job performan=
ce,
there were no outbursts, and there was no evidence to support HUB's claim that the Facebook postings harm=
ed
Cruz-Moore's health, or violated its harassment policy.
C. Reinstatement and Back Pay Ordered.
The Judge then issued a Recommended Order requiring =
HUB
to reinstate the five terminated employees and make them whole for
any loss of pay and benefits resulting from their unlawful
termination. HUB's attorney has alrea=
dy stated
that he intends to appeal the unfair labor practice finding to the
NLRB. In the event an appeal is filed, it will likely take several
months for the NLRB to issue a final ruling.
D. How does the Judge's Decision Impact My Organizat=
ion?
All employers, including those in a non-union
setting, need to be sensitive when employees post on social
media sites such as Facebook. In the event employee postings can =
be
construed as relating to their terms and conditions of employment,
they may be considered protected concerted activity by the NLRB. =
Any
adverse action against an employee, such as termination, for post=
ing
such protected comments will result in significant liability for =
lost
wages, and benefits.
Although Hispanics United of Buffalo is the f=
irst
decision by an NLRB Judge involving whether Facebook postings are
legally protected, the issue has not gone unnoticed by the NLRB a=
nd
will continue to be a focus of its enforcement efforts. The Board=
has
already taken an aggressive approach on the issue by filing
complaints against employers who have disciplined employees for
Facebook postings. Just last year a Connecticut employer settled =
an
NLRB complaint after it was accused of unlawfully terminating an
employee who posted unfavorable remarks about her supervisor on
Facebook and discussed them on her Facebook wall with co-workers.=
On August 18, 2011, the NLRB Office of General Couns=
el,
the prosecuting division of the NLRB, issued a Report Summarizing
Case Developments Arising in the Social Media Context. The Report
contains descriptions of pending cases in which the Board is purs=
uing
litigation against employers who have disciplined employees for
Facebook postings complaining about their supervisor, how the
employer organized its sales event, and tax withholding practices.
Therefore, it is highly liken given the Hispanics United of
Buffalo decision, and increasing usage of social media by
employees that the Board will continue to receive complaints and
potentially litigate matters involving employee postings on Faceb=
ook,
Twitter, and other social media sites.
In order to minimize potential liability under the <=
span
class=3DSpellE>NLRA, employers need to carefully evaluate =
what
is being said (are working conditions, such as working hours,
employer policies, and employees' treatment by supervisors being
discussed), whether an employee is posting their personal opinion=
on
an issue or speaking on behalf of a group of employees, whether
co-workers are discussing a workplace issue among themselves, and
whether there is a call to group action. Depending on what is said
and who is involved in the discussion, a non-supervisory employee=
may
be engaged in protected concerted activity. Employers are strongly
encouraged to consult with legal counsel in the event Facebook
postings are being made by employees for which they are consideri=
ng
disciplinary action. What appears to be an innocuous post may res=
ult
in significant liability to your organization in the event the
employee is terminated and the NLRB later determines that the pos=
ting
constituted protected concerted activity.
Conclusion<=
/p>
If you have any questions about this decision and ho=
w it
affects your workplace, please contact Kurt Graham at (616) 608-1=
144
or kgr=
aham@clarkhill.com;
or Steve Platt at (312) 985-5943 or splatt@cla=
rkhill.com;
or your Clark Hill labor and employment attorney.
|
![3D"Description:](3D"https://imgssl.constantcontact.com/ui/images1/btn_twit_160.png")