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New NLRB Decision Protects Comments Made on Facebook

Turning again to employment law and social media, here is a
look at a recent NLRB decision that held that comments posted on Facebook are
protected to the same extent as comments made at the “water cooler.”

Littler Mendelson provides an interesting look at the recent
case Hispanics United of Buffalo,
where the NLRB found that a non-union employer’s termination of employees for
Facebook postings was unlawful.
In the case, one employee criticized the work
of five other employees. One of the criticized employees responded by sending
an email to her coworkers. The coworkers responded by posting on the employee’s
Facebook page about the criticisms and criticizing employee. The employee who
had originally criticized her coworkers saw the Facebook posts, and claimed that
they violated the employer’s “zero tolerance” policy against bullying and
harassment in the workplace. The employer agreed, and fired the employees who
had posted on Facebook.

The NLRB upheld an administrative law judge’s decision that
the terminations violated the NLRA. The NLRB decided that whether the comments
were made “online” or “at the water cooler” was irrelevant. What was important
was whether the comments were concerted activity that the NLRA protects, and whether
they were then the motivation for the terminations. The NLRB found that the
posts were concerted activity because they had a “mutual aid” objective of
preparing the coworkers’ responses to the criticizing employee’s comments. The
posts were protected because they related to the employees’ job performance,
and were not bullying.

The NLRB has recently begun taking a much more active role
in policing non-union employers. Although the dissent in the case thought that
the comments were not concerted because they simply shared a common viewpoint
rather than joining in a common cause to improve employment conditions, the
majority continued the Board’s move towards a more active role in looking at
social media.

Employers should sit down with an attorney to
review their employee handbooks and social media policies. These items have
been under increased scrutiny, and will continue to be looked at carefully as
employment lawyers challenge the uses of social media in the workplace. Employers
should be careful when basing employment decisions on social media posts, as the
NLRB has been protective of such posts. While they are discoverable in
litigation, concerted activities are protected regardless of the forum.