In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012), a divided National Labor Relations Board decided that the terminations of five employees for Facebook comments posted about one of their co-workers violated the National Labor Relations Act's protection for employees who engage in certain types of concerted activities. The NLRB applied the traditional analysis of "protected concerted activities" under §§7 and 8(a)(1) of the Act to the Facebook postings and found that the terminations were unlawful.
The employer in the case provided social services to economically disadvantaged clients in Buffalo, N.Y. Marianna Cole-Rivera and Lydia Cruz-Moore were co-workers who assisted victims of domestic violence. Cruz-Moore was known to criticize the work performance of her co-workers in her everyday communications.
On Saturday, Oct. 9, 2010, Cruz-Moore texted Cole-Rivera indicating her intent to discuss concerns regarding employee performance with Hispanics United executive director Lourdes Iglesias. From her home, and using her own personal computer, Cole-Rivera then posted the following message on her Facebook page:
"Lydia Cruz, a co-worker feels that we don't help our clients enough . . . I about had it! My fellow co-workers how do u feel?"
Four off-duty employees responded by posting messages on Cole-Rivera's Facebook page related to Cruz-Moore's complaints, such as:
"What the f . . . Try to do my job, I have 5 programs."
"What the hell, we don't have a life as is, What else can we do???"
"Tell her to come do my f-ing job n c if I don't do enough, this is just dum."
"I think we should just give our paychecks to our clients. . . ."
Cruz-Moore then printed the postings and brought them to Iglesias. On Oct. 12, 2010, the first workday after the Facebook postings, Iglesias fired Cole-Rivera and her four co-workers as a result of the Facebook postings. The company's position was that the Facebook posts constituted "bullying and harassment" of a co-worker and violated the company's "zero tolerance" policy against harassment.
Upon review, the NLRB determined that the Facebook posts clearly constituted protected concerted activities "for mutual aid or protection," thus bringing the group-griping via Facebook by the five affected employees within the protections of §7 of the act. The NLRB found that the Facebook posts were a "first step towards taking group action" to defend themselves against employee Cruz-Moore's criticism, which they "could reasonably believe" was going to be taken to management.
The NLRB completely rejected the employer's harassment-policy defense, holding that "legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to discipline on the basis of the subjective reactions of others to their protected activity." In other words, if employees engage in concerted activities for mutual aid or protection, those activities cannot be the basis of discipline, even if other employees are offended by the concerted activity.
With this case, the NLRB adapted its definition of concerted activities "for mutual aid or protection" to off-duty comments posted by a group of employees on Facebook concerning another employee, and ordered Hispanics United to reinstate all five employees, with backpay. Following this case, employers should keep in mind that, as a legal matter, the NLRB's definition of “protected group activity” may override any employer-specific policy against harassment. Employers should investigate and handle employee complaints accordingly.