Hispanics United of Buffalo, Case No. 3-CA-27872 (NLRB, September 2, 2011) Folks are talking about the decision handed down by an Adminstrative Law Judge (ALJ) at the National Labor Relations Board (NLRB) last week, finding that a nonprofit employer violated federal law by terminating five employees over a Facebook status update and comments thereto. It is an inherently intriguing case because, as Eric Meyer points out, this is the first time the NLRB has actually issued a ruling that employees were wrongfully fired because of Facebook content. But if you read the decision [PDF], you will see that the NLRB's decision does not turn on the fact that the communications among the terminated employees took place on Facebook. I am no expert in NLRB matters, but from what I can tell, the ALJ's analysis is a straightforward look at whether the posting and comments were "concerted activity" which is protected by the National Labor Relations Act. Here's a skeletal outline of the analysis: It is an unfair labor practice for employers to, among other things, restrain employees from engaging in "concerted activities for the purpose of . . . mutual aid or protection." "Concerted activities" are those engaged in with or on the authority of other employees, not solely by one employee alone, though a single employee's activities to enlist the support of other employees is protected. For there to be a violation, an empolyer must know that the activities were concerted. In this case, the ALJ found that the terminated employees, by communicating on Facebook, were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [another employee] was going to make to management." The termination prevented them from taking further group action, and the fact that they were fired as a batch tended to show that the employer knew the activity was concerted. So this was thus an unfair labor practice. If anything, the fact that the communications were on Facebook – during non-work hours and on the employees' own computers – fortified the claim that the termination was improper. An employer can argue that employee misconduct during the course of otherwise protected activity can be "so opprobrius as to lose protection." Among the factors the NLRB is to consider in this "opprobriousness" test is the place of the discussion. The communications on Facebook, although maybe not good for the employer's PR, were separate from work hours and facilities, so as to help disqualify them from being "misconduct."
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