National Labor Relations Board Adds To Facebook Jurisprudence; Finds Posts To Be Protected, Concerted Activity

The National Labor Relations Board issued its first social media decision in September. Last week, the NLRB issued another social media decision in a case involving employees’ Facebook comments and an employer’s right to discipline employees for making such comments. In its decision, the NLRB made clear that it would apply settled labor law principles to cases arising in the social media context.

In Hispanics United of Buffalo, employee Marianna Cole-Rivera posted the following message on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?” In response to this posting, four other employees posted that they agreed with Cole-Rivera and objected to any assertion that their work performance was subpar. Cruz also responded to the post, instructing the employees to “stop with ur lies about me.” The employer fired Cole-Rivera and her four supporters on the basis that their comments violated the employer’s zero tolerance policy on “bullying and harassment.”

The NLRB ruled that the employer violated the National Labor Relations Act when it fired the five employees. In particular, the NLRB first found “no question” that the employees were engaged in concerted activity for their mutual aid and protection because Cole-Rivera alerted her co-workers to Cruz’s complaints about their job performance and solicited their views on her complaints, to which they responded with “comments of protest.” Second, the NLRB also found that the employees’ Facebook statements were protected under federal labor law because they centered on the employees’ job performance.

Finally, the NLRB rejected the employer’s argument that the statements were unprotected because they violated the employer’s “zero tolerance” policy against harassment and bullying. The NLRB found no evidence that the employees’ comments could reasonably be construed as harassment under the employer’s policy. The NLRB added that even if the comments were covered by the employer’s policy, Cruz’s “subjective claim that she felt offended by the Facebook comments” was not enough to trump the employees’ rights under federal labor law to engage in protected, concerted activity.    

The NLRB’s ruling here comes as no surprise given the recent decisions and guidance from the NLRB, its administrative law judges and its Acting General Counsel. The ruling further reinforces that union and non-union employers must tread carefully before imposing discipline for employee discussions that take place on social media channels. 

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