Employees' Facebook Posts Were Protected by NLRA, Says Judge

The NLRB announced the "first case involving Facebook" to have resulted in a decision by an Administrative Law Judge (ALJ). The case, Hispanics United of Buffalo v. Ortiz, held that the employer violated the National Labor Relations Act (NLRB), by terminating five employees for their Facebook posts regarding a coworker's complaint about their job performance. One of the five employees posted a message on her Facebook page about the complaint and solicited comments from her coworkers. The responsive comments included plenty of profanity, as well as various reasons why the coworker's complaint was unfounded. When the coworker learned of the posts, she complained and the Facebook posters were terminated. The ALJ concluded that the posts were protected by the NLRA because they were about "matters affecting their employment" and were made amongst coworkers. The ALJ then concluded that the posts did not lose their protection by virtue of the fact that they contained "explicit or implicit criticism of a co-worker," profanity, or sarcasm. The lesson to be learned from Hispanics United? Legally speaking, employers must understand what type of conduct-whether it occurs online or offline-will trigger the protections of the NLRA. Practically speaking, employers should plan ahead-discuss how your organization will handle a complaint about employees' Facebook activities, particularly when the activity is critical of management or other employees. And know not to react with emotion if (and when) the situation occurs. Instead, call your employment counsel for sound advice about how to proceed. Hispanics United of Buffalo v. Ortiz, 03-CA-027872 (Sept. 2, 2011)

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