The National Labor Relations Board (NLRB) has ruled that employees’ Facebook posts regarding other employees’ criticism of their job performance can be protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). As such, the NLRB found that the NLRA was violated when an employer terminated employees for what it considered bullying Facebook posts.
In Hispanics United of Buffalo, Inc. (Case 03-CA-027872), Lydia Cruz-Moore planned to address concerns regarding her co-workers’ performance with her manager, Lourdes Iglesias. Ms. Cruz-Moore told another co-worker, Marianna Cole-Rivera, via text message of this plan. In response, Ms. Cole-Rivera put up a Facebook post that stated “Lydia Cruz, a coworker feels that we don’t help our clients enough … I about had it! My fellow coworkers how do you feel?”
Several employees responded to the post with comments that “generally objected to the assertion that their work performance was substandard.” Ms. Cruz-Moore complained to her manager, Mr. Iglesias, about Ms. Cole-Rivera’s post and the responses from her co-workers. Ms. Cole-Rivera and the employees who responded to her post were all terminated for harassment.
The NLRA protects concerted activity regarding wages, hours, and terms and conditions of employment. In this case, the NLRB ruled that these employees “were taking a first step towards taking group action to defend themselves against the accusation” they thought was going to be made to Mr. Iglesias. The Board reasoned that the discussions were about job performance, and were thus protected, regardless of whether any such conversation with management had actually taken place.
Board Member Brian Hayes dissented, stating that the comments were not made for the purposes of “mutual aid and protection,” and that the NLRA does not protect “mere griping.” He argued that the employees were complaining about Ms. Cruz-Moore, and that they were not intending to promote a group defense. Indeed, the original Facebook post did not even mention that a discussion with Mr. Iglesias was pending.
Employers should carefully consider the current NLRB environment when contemplating discharging employees based on their posts on social media. MSEC attorneys are available to provide counsel in these matters when they arise.