Non-profit must rehire workers fired for Facebook comments

An Administrative Law Judge for the National Labor Relations Board (NLRB) ruled that a Buffalo-based non-profit organization acted illegally when it fired five employees last October for posting work-related comments on Facebook.

The HUB case is the first involving Facebook comments to be decided by an Administrative Law Judge, according to the NLRB.

In a 14-page ruling earlier this month, Judge Arthur Amchan ordered Hispanics United of Buffalo Inc (HUB) to immediately reinstate all five employees and to pay them all back pay and benefits.

“Employees have a protected right to discuss matters affecting their employment amongst themselves,” Amhcan said in his ruling. “The Facebook posts were related to a co-worker’s criticisms of employee job performance, a matter the [fired employees] had a protected right to discuss.”

HUB is a non-profit organization that provides housing, counseling, translation, and interpretation services for economically disadvantaged people in the Buffalo, N.Y., area.

However, it is among a growing number of similar cases brought before the NLRB’s Division of Advice over the past year.

In August, the NLRB’s Office of General Counsel released a report summarizing the outcome of its investigations into 14 complaints involving Facebook, Twitter and other social media use during the previous year.

NLRB decisions in those cases were split with some favoring workers and others favoring employers.

The decisions “make clear that an employer must tread very carefully in seeking to promulgate policies which regulate the activities of employees on social media sites,” said Leah Williams, an associate with law firm Baker Hostetler in a blog post .

“Any policy which seeks to regulate discussion among employees concerning the workplace or their terms of employment will be deemed unlawful and overbroad by the NLRB to the extent that it regulates protected concerted activity,” she wrote.

The HUB case stems from a complaint filed by one of the workers fired last year.

The incident started when a HUB employee posted comments about a co-worker on her personal Facebook page. The comments were related criticism that the co-worker had made about the work ethics of some employees at HUB.

The posting elicited Facebook comments from four other HUB employees, who defended their work and criticized the working conditions and workload at HUB.

Their comments, some of which were profanity-laced, led to the termination of all five workers from HUB.

The non-profit said that the comments violated its policies and represented bullying and harassment of the employee who was the subject of the original post.

In his ruling Amchan said that the Facebook comments constituted a form of “protected concerted activity.”

Labor laws give employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” Amchan said.

An employee’s actions are protected if it is aimed at “initiating or inducing group action,” the judge said. In this case, it is conceivable that the Facebook comments were a first step by the employees towards taking group action to defend themselves against the co-worker who had criticized their work, he said.

Such concerted actions are protected regardless of whether the action is initiated around the water cooler or on Facebook, Amchan wrote. Employers are acting illegally if they try to restrain or interfere with such activity, he said.

The decision is an important one for both employers and employees. The ruling shows that while work-related comments made by employees on social media sites are protected many caes, in some others they are not.

In the August report, the The NLRB’s Division of Advice found that in four cases, employees had engaged in “protected concerted activity” when they discussed the conditions and terms of their employment on Facebook.

One of those cases involved an employee who called his supervisor a ‘scumbag’ on his personal Facebook page. Another involved an employee at a car dealership who posted several photographs and sarcastic comments on his Facebook page about the quality of refreshments served by his employer during an important new car launch.

However, in five cases involving Twitter and Facebook posts, the NLRB sided with the employers and found that employees acted improperly when posting work-related content on social media sites.

In a case involving a reporter who was fired for publicly posting on Twitter and other social media sites work-related information that included criticism of copy editors at the workplace, the NLRB concluded that the employer had acted properly because the reporter’s social media activity did not constitute concerted activity — it was not directed at other employees and was not aimed at initiating action.

In another incident, the NLRB ruled that a customer service employee’s profanity laden comments on Facebook about the management at the retail store he worked for was not protected because they were individual gripes and not concerted activity.

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