The National Labor Relations Board issued another decision that impacts both union and non-union employers who fire an employee because of online activities. In Hispanics United of Buffalo, the Board concluded that an employer violated the National Labor Relations Act when it fired five employees for remarks they made on Facebook in response to a coworker’s criticisms of their performance on the job.
According to the facts in the Board’s decision, Lydia Cruz-Moore often criticized other employees about their work habits. In October 2010, Cruz-Moore text messaged co-worker Marianna Cole-Rivera, saying she (Cruz-Moore) planned to take her complaints to the executive director. Cole-Rivera then posted the following message on her Facebook wall at 10:14 am:
Lydia Cruz, a coworker feels that we don’t help our clients enough at [work]. I about had it! My fellow coworkers how do u feel?
By 10:19 am (a mere five minutes later), Cole-Rivera’s post generated its first response from another off-duty employee: “What the f. . . . Try doing my job I have 5 programs."
In less than 10 minutes after that, a second off-duty co-worker responded: “What the Hell, we don’t have a life as is, What else can we do???”
Within an hour, a third exclaimed: “Tell her to come do [my] f[*]cking job n c if I don’t do enough, this is just dum.”
A fourth employee responded 30 minutes later, and the discussion continued – and it also eventually involved a member of the HUB Board of Directors, the secretary to the executive director, and a response from Cruz-Moore herself.
Cruz-Moore then complained to the executive director about the Facebook comments, claiming she had been "slandered and defamed." After reviewing printouts of the Facebook comments, the executive director fired Cole-Rivera and the four co-workers who responded online -- saying the Facebook remarks violated the company's policy against "bullying and harassment" of another coworker.
The Board agreed with the administrative law judge's conclusion: the employees' Facebook comments amounted to concerted activity protected under Section 7 of the NLRA. The NLRB said that when applying long-standing Board principles and authority, "there should be no question that the activity engaged in by the five employees was concerted for the 'purpose of mutual aid or protection' as required by Section 7."
The Board went on to explain, "As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee's complaint that they 'don't help our clients enough,' stated that she 'about had it' with the complaints, and solicited her coworkers' views about this criticism. By responding to this solicitation with comments of protect, Cole-Rivera's four coworkers made common cause with her, and, together, their actions were concerted" within the meaning of the Act.
Indeed, Section 7 protects employee discussion about job performance, and as the Board noted, "the Facebook comments plainly centered on that subject."
Just in September of this year, the Board issued its first two decisions addressing social media issues. You can bet we'll see much more development in this area in the coming months.