September 21, 2011

Facebook firings revisited — NLRB extends its reach

Posted in Facebook, National Labor Relations Act, Protected Concerted Activity, Social Media in the Workplace tagged , , , at 10:44 am by Tom Jacobson

I’ve written many times about employees who lose their jobs because of their Facebook activities (see, for example: Facebook faux pas costs waitress her jobFacebook firings and the First AmendmentFiring over Facebook photo — a violation of Minnesota law?).  In yet another foray into the world of work and social media, the National Labor Relations Board(NLRB) has now extended its reach into the issue.

Specifically, the NLRB ruled on September 6, 2011 that Hispanics United of Buffalo (NY) unlawfully discharged five employees after they posted comments on Facebook about working conditions (see Administrative Law Judge finds New York nonprofit unlawfully discharged employees following Facebook posts). According to the NLRB, “After hearing a coworker criticize other employees for not doing enough to help the organization’s clients, the employee posted those allegations to her Facebook page.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues.”

Hispanics United fired the five employees on the basis that their posts “constituted harassment of the employee originally mentioned in the post.”  The NLRB ruled that the firing was unlawful because the employees’ conduct was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA).

NLRB action is such cases is nothing new.  For example, the NLRB has ruled that social media policies which too broadly restrict employees’ rights to discuss terms and conditions of employment violate the NLRA (see my previous posts, NLRB challenges Facebook firing and Facebook firing case settled).  What’s significant about the Hispanics United case is that it involved a non-unionized workforce, and it did not target an employer’s social media policy.

The case is likely to be reviewed on appeal, but for now it stands as another reminder that the NLRB is aggressively pursuing Facebook firing cases and is taking a broad view of what is protected concerted activity under the NLRA.  It is also a reminder that certain provisions of the NLRA apply regardless of whether or not a workplace is unionized.

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The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

1 Comment »

  1. […] have been held to violate the National Labor Relations Act (see NLRB challenges Facebook firing, Facebook firings revisited – NLRB extends its reach, Facebook firing case […]

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