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Employee Facebook Complaints Protected by NLRA

The NLRB has received an increasing number of charges related to social media in the past year, but this is the first case involving Facebook that resulted in an administrative law judge's decision after a hearing.

November 3, 2011

Several employees of Hispanics United of Buffalo Inc., or HUB, complained about supervisor Lydia Cruz-Moore's criticism of their work performance in a message posted on a personal Facebook page. One employee stated that, "Lydia Cruz, a co-worker, feels that we don't help our clients enough at HUB. I about had it! My fellow co-workers how do u feel?" Four other HUB employees commented on the posting.

In response to the Facebook posts, Cruz-Moore complained to HUB's executive director, Lourdes Iglesias. As a result, five employees were fired. They were told they had bullied and harassed Cruz-Moore and had caused her to suffer a heart attack.

An administrative law judge held that HUB, a not-for-profit social service provider, violated Section 8(a)(1) of the National Labor Relations Act, which bars employers from interfering with the rights of employees, guaranteed by Section 7 of the act, to engage in concerted activity for their mutual aid or protection. The judge found that federal labor law protected employee communication "around the water cooler" and provided equal protection to comments posted on Facebook. Employees who posted criticisms of Cruz-Moore engaged in such job protected activity. Further, there was "no rational basis for concluding that their Facebook posts had any relationship to Cruz-Moore's health."

The judge ruled that the five employees should be rehired and paid for their lost work. Hispanics United of Buffalo Inc. v. NLRB ALJ, No. 3-CA-27872, (Sept. 2, 2011).

Impact: The NLRB has received an increasing number of charges related to social media in the past year, but this is the first case involving Facebook that resulted in an administrative law judge's decision following a hearing.

Workforce Management, November 2011, p. 21 -- Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.