On September 2nd, an Administrative Law Judge for the National Labor Relations Board (NLRB) decided the “first case involving Facebook to have resulted in an ALJ decision following a hearing.”  Until this decision, the Board’s activity had been limited to issuing complaints against employers, and producing reports and advice memoranda.  In the case, Hispanics United of Buffalo, Judge Arthur Amchan stated that “the only substantive issue in this case, other than jurisdiction, is whether by their postings on Facebook, the five employees engaged in activity protected by the [National Labor Relations] Act (NLRA).”  Their employer had fired the five employees for their Facebook posts.

At issue was a Facebook conversation between co-workers.  Their employer, Hispanics United of Buffalo (HUB), is a not-for-profit corporation which renders social services for economically disadvantaged clients.  One HUB employee, Lydia Cruz-Moore, had frequently criticized the job performance of her fellow staff members.  After Cruz-Moore told a co-worker that she was going to discuss these criticisms with HUB’s executive director, that co-worker posted the following message on her Facebook page:

“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?”

Responses from co-workers included the following:

“What the Hell, we don’t have a life as is, What else can we do???”

“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 as translators (oh! We do that).”

The original poster responded: “Lol.  I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do . . . I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human : ) love ya guys.”

The original post and all responses occurred on a Saturday, which was not a work day for any of the employees involved.  None of the employees used HUB’s computers to post these Facebook messages.  Three days later, HUB’s executive director fired five of the employees who had posted comments, explaining to each discharged staff member that the posts violated HUB’s policy on harassment (harassment against Cruz-Moore).

Section 7 of the National Labor Relations Act extends protections to most private sector employees, including the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Workers do not need to be actively trying to change workplace conditions or policies for such NLRA protections to apply, as employees are also protected in simply discussing concerns that they feel are affecting their employment.  Thus, this protection is fairly broad as long as the activity is concerted; the activity must be either a group effort or an individual effort that initiates or induces group participation.   Section 8(a)(1) is the enforcement mechanism for Section 7 protections, prohibiting employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. Based upon such protections, Judge Amchan held:

“Employees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker for the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.  By terminating the five discriminatees for discussing Ms. Cruz-Moore’s criticisms of HUB employees’ work, Respondent violated Section 8(a)(1).”

Judge Amchan articulated the facts of this case in such a way that the legal analysis could then be presented as a straightforward application of Section 7 protections: he establishes that there was “concerted activity” and that the subject matter was related to mutual aid and protection, and therefore the Facebook conversation was protected.  Nonetheless, the law on social media is sure to see rapid development due to social media’s increasing prevalence and thus the potential for many situations that will call into question the definitions involved in understanding Section 7 rights.  According to Nielson’s Third Quarter 2011 Social Report, nearly four-fifths of internet users visit social networks and blogs.  Facebook reaches 70 percent of active U.S. internet users, and Americans spend more time on it than any other U.S. website.  In August, the NLRB’s General Counsel released a report that examined recent case developments “arising in the context of today’s social media.”  The new challenge presented by social media is articulated in many of these cases: social media platforms can make it difficult to differentiate between “concerted activity” and activity which is not concerted and thus unprotected — that which is engaged in “solely by and on behalf of the employee himself.”

For example, the August report examined one case in which a bartender was discharged for posting a message on his Facebook page in which he complained about his employer’s tipping policy.  There, the employee had not discussed his posting with any coworkers, nor had any of them responded to his posting.  Thus, the NLRB advised the parties involved that the activity was not protected.

The report also mentioned a case in which a BMW salesman expressed concerns about the actions of his employer: inviting customers to an event but only providing hot dogs and other cheap food and beverages to the customers at the event.  The employee’s concern was that the inexpensive food would send the wrong message to the company’s clients and accordingly have a negative effect on his sales and work conditions.  The employee had discussed the planned food choices with several of his co-workers, who shared his frustration.  He further expressed these concerns by posting pictures of the event on Facebook.  An advisory opinion by the NLRB reasoned that in posting them, he had “expressed the sentiment of the group,” and that the activity “was a direct outgrowth of the earlier discussion among the salespeople.”  For this reason, the NLRB concluded the activity was “clearly concerted”, that the employee had been discharged based on this activity, and that therefore the discharge was in violation of Section 8(a)(1) of the NLRA.***

These NLRA protections are essential.  They give employees very basic rights: the ability to at least discuss their workplace concerns with co-workers and management.  Such rights are important because when an employee is fired at work, and cannot demonstrate NLRA protection or discrimination by the employer on the basis of race, sex, age, etc., the employee is typically out of luck.  In the vast majority of states, the default employment relationship is at will, meaning that an employee can be fired for good cause, bad cause, or no cause at all outside of the aforementioned protections.  Some states have common law exceptions to the at will doctrine that try to limit the bad cause or no cause firings, but such exceptions are extremely narrow in scope.  As a result, the NLRA provisions are critical.

However, online forums such as Facebook may pose a serious threat to the countervailing interest of employers: the ability to operate a business without being unnecessarily restricted from disciplining or cutting ties with employees who damage their company’s reputation through the use of social media.  Judge Amchan stated that “discussing” employment conditions is protected “regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”  This broad language could easily be stretched to provide protection to employees in situations where a Facebook post could formally be viewed as a dialogue about work conditions, but the employees involved were primarily intending to embarrass or make fun of the employer.  Should NLRA protection turn on whether the Facebook post receives a “Like” or a few one-line lighthearted responses by friends who happen to be co-workers?

The NLRB report states that employees would go too far if their action took the form of an “opprobrious” public outburst to a coworker, or a comment that was extremely disloyal, reckless, or maliciously untrue.  However, the two cases that provide the authority for these limits were decided by the NLRB in 1979 and 1953, so social media cases are sure to rewrite the boundaries of how far an employee can go before his employer’s interests overrides his NLRA protections.  Stay tuned as this interesting set of issues will continue to challenge and redefine our interpretations of the National Labor Relations Act.

[***Interestingly, this case was later brought before an Administrative Law Judge, who released his decision last Wednesday.  The judge agreed that posting the photos on Facebook was protected activity.  However, he held that a separate Facebook post by the same employee was not protected and that this second post was the actual reason for his termination.  Thus, he was not reinstated.  In the second post, the employee posted pictures of a car in a pond, taken after a customer had accidentally driven a Range Rover at a dealership into the pond (the employee did not actually work at the Range Rover dealership, which was across the street from the BMW dealership that he worked at, but this dealership was owned by the same employer).  The judge held this Facebook post was not protected because “it was posted solely by Becker . . . without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment.”]

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