An employer violated the National Labor Relations Act (NLRA) by firing five employees who complained on Facebook — off-hours — about their jobs, an administrative law judge for the National Labor Relations Board (NLRB) held. So the employer must do penance by rehiring them and making them whole for any loss of earnings and other benefits.
Here’s the background. Lydia Cruz-Moore was employed by Hispanics United of Buffalo, Inc. (HUB), and to varying degrees complained in conversation or text messages to several employees about other employees’ job performance. Cruz-Moore told fellow employee Mariana Cole-Rivera that she was going to raise these concerns with HUB’s Executive Director Lourdes Iglesias.
On Oct. 9, 2010 — while at home and on a non-work day — Cole-Rivera posted this 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?”
This resulted in a round of angry, sarcastic and curious responses from several employees, ranging from “What the f. .. Try doing my job I have 5 programs,” to “Is it not overwhelming enough over there?” Even Cruz-Moore posted, saying “Marianna stop with ur lies about me.”
Cruz-Moore also complained to Iglesias about the Facebook posts, in an apparent effort to get the employees terminated or at least disciplined.
On Oct. 12, Iglesias met individually in a “very short” meeting with five of the employees who had made the Facebook posts and fired them, contending that the posts constituted bullying and harassment, and thus violated HUB’s policy on harassment, and led Cruz-Moore to have a heart attack.
This ultimately led to NLRB complaint against HUB, which argued that the five were terminated because they engaged in concerted activity protected under NLRA Section 8(a)(1), which provides that it is an unfair labor practice to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7. In turn, Section 7 states that, “employees shall have 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 … (Emphasis added)”
Here, the judge cited several NLRB opinions to conclude that the employees’:
Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which [HUB] employees performed their jobs, are protected. It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to [HUB].
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The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging the discriminatees on October 12, [HUB] prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that [HUB] lumped the discriminatees together in terminating them, establishes that [HUB] viewed the five as a group and that their activity was concerted…
Furthermore, the judge noted that the Facebook posts were not made at work or during working hours, and HUB did not establish that the employees violated any of its policies or rules. The only harassment policy at issue focused on certain forms of harassment that create an intimidating, hostile or offensive work environment, unreasonably interfere with an individual’s work performance or otherwise adversely affect an individual’s employment opportunity — none of which could be proven here. Furthermore, no evidence existed connecting Cruz-Moore’s alleged heart attack with the Facebook posts.
The judge then held that HUB must reinstate the employees, expunge their records regarding the unlawful discharges and make them whole for any loss of earnings and other benefits. Furthermore, HUB must post a notice “in conspicuous places” for 60 days regarding the disposition of this case.
Here’s a copy of the opinion below.
And if you want to learn more about the evolution of employment law related to social media — and the growing need for social media policies in the workplace, see Think Before You Click: Strategies for Managing Social Media in the Workplace, published by Thompson Publishing Group.