On September 2, 2011, an Administrative Law Judge (“ALJ”) ordered Hispanics United of Buffalo (“HUB”), a New York notprofit organization that provides social services to economically disadvantaged clients, to reinstate five employees. The ALJ held that a conversation among them on Facebook about the terms and conditions of their employment, including their job performance and staffing, was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act. While the NLRB has considered many cases involving social media, this decision is the first involving Facebook to be reached by an ALJ after a hearing.
The Facebook Posts
After becoming tired of a colleague’s critique of her work performance, on Saturday, October 9, 2010, a HUB employee, Mariana Cole-Rivera, posted the following message on her Facebook page from her home: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow co-workers how do u you feel?” Comments posted in response included:
Cole-Rivera then posted again as follows: “Lol. I know! I think it is difficult for someone that its [sic] not at HUB 24-7 to really grasp and understand what we do. .I will give her that. Clients will complain especially when they ask for services we don’t provide, like washer, dryers stove and refrigerators, I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys.”
Cruz-Moore subsequently posted, “Marianna stop with your lies about me. I’ll be at HUB Tuesday.” Cole-Rivera responded, “Lies? Ok. In any case Lydia, Magalie [Lomax, HUB’S Business Manager] is inviting us over to her house today after 6:00 pm and wanted to invite you but does not have your number I'll inbox you her phone number if you wish.”
The Terminations
Cruz-Moore complained to HUB’s Executive Director, Lourdes Iglesias, about the posts. On October 12, 2010, Iglesias met with the five employees who posted and terminated them, explaining that the posts constituted bullying and harassment. Iglesias told each employee that Cruz-Moore had a heart attack as a result of the posts and that HUB was going to have to pay her compensation. The ALJ explained that there was no evidence that Cruz-Moore had a heart attack and that Iglesias did not have a rational basis for concluding that the Facebook posts had a relationship to Cruz-Moore’s health.
The ALJ’s Decision
The ALJ found for the five employees. He explained that the five employees had engaged in protected concerted activity and that HUB terminated them in violation of Section 8(a)(1) of the National Labor Relations Act (the “Act”).
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. Section 7 of the Act provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representation for their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” “Concerted activities” are those “engaged in with or on the authority of other employees, and not solely by and behalf the employee himself.” Myers v. Industries, 268 NLRB 493 (1984) and Myers v. Industries, 282 NLRB 882 (1986).
The ALJ explained that by discussing criticism of their job performance, the five employees 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.” He also found that by “lumping the discriminatees together and terminating them,” HUB viewed the five as a group and that their activity was concerted. The ALJ explained that the protection of Sections 7 and 8 of the Act do not depend on whether organizing activity is ongoing, whether employees first bring their concerns to management, whether the employees intend to take further action or whether they are attempting to change working conditions.
HUB maintained that the employees engaged in misconduct during the course of their Facebook messaging were properly terminated. The ALJ considered the factors set forth in Atlantic Steel Co., 245 NLRB 814 (1979) to determine whether the employees’ conduct was so opprobrious as to forfeit protection under the Act. The Atlantic Steel factors are (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was in any way provoked by an employer’s unfair labor practice. The ALJ explained that as to the first factor, the posts were not made at work and not during working hours. As to the second factor, the posts were related to a coworker’s criticism of employee job performance, a matter the employees had a protected right to discuss. With respect to the third factor, there were no “outbursts,” many of the posters did not mention Cruz-Moore and none criticized the employer. The fourth factor was considered irrelevant.
Advice for Employers
Employers unhappy with their employees’ use of social media need to carefully assess employee rights under the NLRA before taking any adverse action against them. Employers should consider first whether the employee’s activity concerns wages or the terms and conditions of employment, and if so, the employer should determine whether the employee is acting individually or on behalf of his or her colleagues. An employer should keep in mind that concerted activity may also include circumstances where individual employees seek to initiate or induce or prepare for group action. As the ALJ explained in the HUD decision, it is immaterial whether organizing activity is ongoing, whether employees first bring their concerns to management, whether the employees intend to take further action or whether they are attempting to change working conditions.
To take adverse action against an employee who has engaged in “protected concerted activity,” an employer must be certain that the employee’s conduct is so opprobrious as to forfeit protection under the Act. This standard, however, is very difficult to satisfy, as evidenced by the August 3, 2011, D.C. Circuit decision in Kiewit Power Constructors Co. v. NLRB, where comments by employees in response to warnings about excessive break time that things would “get ugly” if they were disciplined and that the supervisor should bring his boxing gloves were protected, though intemperate, conduct.
Finally, employers should review their employee handbooks to make sure their policies regarding social media, workplace conduct and confidentiality do not chill employees’ Section 7 rights. While policies that explicitly prohibit employers from discussing wages and working conditions explicitly violate Section 7, the NLRB may find a workplace rule unlawful if employees could reasonably construe the language to prohibit Section 7 activity, if the rule was promulgated in response to union activity or if the rule has been applied to restrict the exercise of Section 7 rights.
For more information on this alert, please contact any of the lawyers listed below:
Boston
John Adkins, john.adkins@bingham.com, 617.951.8551
Jenny Cooper, jenny.cooper@bingham.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, louis.rodriques@bingham.com, 617.951.8340
Los Angeles/Orange County
Jacqueline Cookerly Aguilera, jackie.aguilera@bingham.com, 213.229.8439
Debra Fischer, debra.fischer@bingham.com, 213.680.6418
San Francisco
James Severson, james.severson@bingham.com, 415.393.2242
New York
Douglas Schwarz, douglas.schwarz@bingham.com, 212.705.7437
Tokyo
Mie Fujimoto, mie.fujimoto@bingham.com, 81.3.6721.3138
This article was originally published by Bingham McCutchen LLP.