In another decision that affects non-union as well as union employers, the National Labor Relations Board recently ruled that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the “water cooler.” In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the Board found that a non-union employer’s termination of five employees for Facebook postings was unlawful, awarding the employees full reinstatement and back pay.
The controversy began when one employee criticized the work of five of her co-workers. One of the criticized employees sent a message from her personal computer at home to the other four employees complaining about the comment that had been posted about them. The co-workers responded on Facebook to the original comment and obviously were not kind in their comments directed toward the original employee. In response, the original co-worker ((who had initially complained about the other five) demanded that the others stop talking about her.
The co-worker then complained to her supervisor that the postings violated the employer’s “zero tolerance” policy against “bullying and harassment.” The employer investigated and, agreeing with her that its policy had been violated, fired the five co-workers.
The NLRB upheld an administrative law judge’s decision that the terminations violated the National Labor Relations Act (the “Act”), even though no union was involved. The Board concluded that whether the comments were made on line, by way of social media, or “around the water cooler” was irrelevant to the analysis. Instead, the Board focused on whether the postings were:
• “Concerted” activity under the Act;
• Known to be concerted by the employer’s supervisor, who was shown the postings;
• “Protected” under the Act; and
• The motivation for the terminations.
The second and fourth elements were undisputed. On the first and third elements, the Board, with one dissenting, found against the employer. The postings were concerted, the Board concluded, because it was “implicitly manifest” that the co-workers’ postings had the “clear ‘mutual aid’ objective of preparing the co-workers for a group defense to original complaints.” As to the third element, the Board considered the postings protected because they related to the employees’ job performance and objectively could not be considered “bullying” or “harassing.” The dissent objected to the majority’s reasoning, finding there was “insufficient evidence that either the original posting or the views expressed in response to it were for mutual aid or protection.” Specifically, he emphasized, “the mere fact that the subject of discussion involved an aspect of employment—i.e., job performance—is not enough to find concerted activity for mutual aid and protection. There is a meaningful distinction between sharing a common viewpoint and joining in a common cause.”
A first key lesson to be learned from this and other recent cases is the importance for all employers, whether union or non-union, of reviewing all employee-related social media policies. Second, all employers should be cautious when basing employment decisions on Facebook or other social media postings. In addition to the issues raised in this case, there are privacy issues that can arise. Despite the potential for social media “discussions” to be played and replayed to an extremely wide audience, the NLRB will analyze their protected nature the same way that it analyzes a whispered conversation in the employee lunch room or parking lot.
Finally, whenever employer discipline or other adverse employment actions are based on employee communications, employers should consult counsel to make certain the speech is not “concerted, protected” speech under the Act.