NLRB’s first “Facebook Firing” ruling has implications for employers

The issue of disciplining or firing employees over their posts on Social Media is a natural consequence of these tools being available to the masses. And now there is some legal precedent – or at least National Labor Relations Board (NLRB) precedent, anyway – for future cases of this type. Brian Hall of Employer Law Report has the story.

Fired for complaining about a co-worker on Facebook

An NLRB Administrative Law Judge ruled this week in a case involving employees of the non-profit Hispanics United of Buffalo, Inc. The organization fired five employees for complaining on Facebook about the job performance of a co-worker. The co-worker complained to management, and the employees were fired.

From Hall’s report, here is how the Administrative Law Judge in the case ruled:

The Administrative Law Judge (ALJ) concluded that the Facebook “communications … in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs are protected” under Section 7 of the National Labor Relations Act (NLRA). According to the ALJ, the terminated employees were “taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [the co-worker] was going to make to management.” By discharging the employees, the ALJ concluded, the employer prevented them from taking further action. In short, the ALJ stated,

“Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.”

The ALJ went on to hold that the terminated employees did nothing to forfeit the protections of the NLRA. There was no evidence that the terminated employees violated any employer policies or rules. The Facebook posts were not made at work or during working hours and the postings contained no abusive “outbursts” that overrode the right to protection under the NLRA.

Implications for Employers and Employees regarding Social Media use
According to Hall’s report, this ruling fits with the NLRB’s Advice Memoranda on this topic. So terminating employees over complaints about co-workers on Social Media could be problematic. Of course, the terminated employee would need to pursue the entire NLRB process on his/her own, but it can be done. And even if an employer can successfully defend a legal complaint, it costs time and money and can result in the airing of other dirty laundry that they’d much rather keep hidden in the closed laundry basket. So employers should think twice before terminating employees over Social Media comments.
What do you think of this ruling?

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