Facebook Firing Fatally Flawed

There has been a lot of discussion previously here, here and here on the Blawg about the NLRB's recent forays into cyberspace. The NLRB has now issued its first-ever written decision in this realm here. The Ruling The judge ruled that Hispanics United of Buffalo (HUB) – a non-profit non-union organization that provides assistance to low-income clients – unlawfully fired five employees after they posted remarks on Facebook regarding terms and conditions of their employment, including job performance, resources, workload and staffing levels. The Comments It all started at 10:14 a.m. on Saturday, October 9, 2010 (a non-work day) when a HUB employee named Mariana Cole-Rivera posted a comment on her Facebook page from her home computer: 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 feel?" Five minutes later, another HUB employee replied: What the f. .. Try doing my job I have 5 programs A few minutes later, another employee responded: What the Hell, we don't have a life as is. What else can we do??? And then another: Tell her to come do my [expletive deleted] job n c if I don't do enough, this is just dum Others chimed in with similar comments, including the instigator, Cole-Rivera. And then Lydia Cruz-Moore, the subject of the chain, posted: Marianna stop with ur lies about me. I'll b at HUB Tuesday.. The Firings Cruz-Moore complained to HUD's Executive Director about the Facebook comments. The ED promptly fired five of the employees on the grounds that the comments violated HUD's anti-harassment policy. Somewhat strangely, the ED informed the employees that Cruz-Moore suffered a heart attack because of their posts, which apparently was not the case. The NLRB's Findings The judge concluded that the employees' Facebook-ing constituted protected concerted activity because the employees were discussing their terms and conditions of employment among themselves. Such discussions are covered whether or not they are: on or off company premises; on or off work time; seeking to change working conditions; and communicated to the employer. The judge found the discussions protected despite their profanity, sarcasm and personal attacks and rejected the employer's assertion that they constituted harassment. The judge found that the comments had no adverse impact on the targeted employee's performance and found the "heart attack" argument unfounded. In short, the judge concluded that the employer "was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so." What This Means for Employers Can I ignore this and similar cases because my company is non-union? No. The National Labor Relations Act (NLRA) protects the rights of both union and non-union employees to discuss wages, hours and other terms and conditions of employment with co-workers and others. Does this case mean that employees can now post whatever they want about my company online? No. While employees have the right to discuss wages, hours and working conditions, neither this nor any other case gives them an absolute right to defame or disparage a company and/or its products, management or employees. Individual employee expressing their views on their own typically are not deemed protected/concerted. However, if others join in, be careful – especially if you're going to fire a group en masse. Should companies periodically review their social media policies to ensure that they're not overly broad or out-of-date? Yes. Here's a model policy from the fine folks at McGuire Woods LLP for your consideration.

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