Author: Beth Zoller, XpertHR Legal Editor

Employers should proceed with extreme caution before disciplining employees for their Facebook postings or other social media activity. In Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case 03-CA-027872 (December 14, 2012), the full board of the National Labor Relations Board (NLRB) affirmed the earlier ruling of an Administrative Law Judge (ALJ) that an employer committed an unfair labor practice and violated the right of five nonunion employees to engage in protected concerted activity by terminating them for complaining about working conditions on Facebook. See Hispanics of Buffalo, Inc., No. 3-CA-27872, +2011 NLRB LEXIS 503 (A.L.J. Sept. 2, 2011).

In this case, using her personal computer from home and on a nonwork day, an employee posted to Facebook that a co-worker, Lydia Cruz-Moore, was unfairly criticizing the other employees' performance, and specifically asked her co-workers how they felt about these comments. In direct response to this posting, four of her co-workers posted comments on Facebook, defending their work performance and criticizing the employer's staffing levels and workload. The five were then fired for violating company policy on bullying and harassment. In reaching the conclusion that this termination violated the National Labor Relations Act (NLRA), the NLRB made clear that the employees' Facebook discussions concerning job performance and soliciting co-workers' advice on how to handle another co-worker's criticism constituted protected concerted activity. Although Facebook and social media is a novel form of communication, the NLRB applied well-established NLRB precedent to evaluate whether the activity was protected. The NLRB reasoned that the employees' actions on Facebook were the "first steps towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management." Further, the NLRB stated that the communications were a request for mutual aid in preparing a group defense against a co-worker's complaints.

Advice for Employers

This decision highlights that the NLRB will consider employee comments made on social media such as Facebook regarding wages, hours and working conditions to be protected concerted activity. This is true even if the conduct takes place during off-duty hours and on the employee's personal computer. In evaluating whether a specific posting is protected, the NLRB will carefully consider: the content of the statements, whether the posts were made to co-workers or concerned an individual complaint or gripe, and whether co-workers responded to the posts. In this case, because the employees engaged in an active discussion regarding a co-worker's criticism of their work performance, the NLRB found that this activity was indeed protected.

As a result of this ruling and other recent rulings by the NLRB, employers should develop and maintain carefully worded social media policies and provide proper training on these policies to all employee and supervisors. Employers should avoid broad language in social media policies that outright prohibits protected concerted activity or can be reasonably interpreted as infringing on the right to engage in protected activity. Further, before disciplining an employee for a social media post, employers should carefully consider whether the questionable post involves some form of protected concerted activity.

Additional Resources

Employee Management > Employee Privacy > Monitoring Use of Social Media Networks

Dos and Don'ts Regarding Social Media Policies - Chart

Social Media Policy

How to Draft and Enforce a Social Media Policy in the Workplace

Dos and Don'ts of Social Media - Supervisor Briefing

Employee Use of Social Media May Constitute Protected Concerted Activity