In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the National Labor Relations Board (NLRB) found that an employer violated section 8(a)(1) of the National Labor Relations Act (NLRA) by firing five employees for comments that they posted on Facebook after learning that a co-worker criticized their work performance. The significance of the case is not so much that social media was involved; rather it is that the Board found the comments were protected concerted activity even though there was no clear indication the employees were contemplating group action of any kind.

The Facebook rift ignited when employee Lydia Cruz-Moore texted fellow employee Marianna Cole-Rivera saying that she (Lydia) was going to tell their supervisor what a bad job Marianna and others were doing. Marianna responded by posting the follow message on Facebook:

“Lydia Cruz, a coworker feels that we don’t help our clients enough at [Employer]. I about had it! My fellow coworkers how do u feel?”

Four employees posted comments, generally agreeing with Marianna’s posting. Lydia also commented on the post, telling Marianna to stop spreading lies. She then reported the incident to their supervisor. The supervisor terminated Marianna and the four employees who commented about Lydia under the company’s anti-harassment policy.

The Board found these terminations violated section 8(a)(1) of the NLRA, which has been interpreted to prohibit the firing of employees for engaging in protected concerted activity. The term “concerted activity” means group action by employees for their mutual aid or protection. Here, the Board inferred that the employees contemplated group action for their mutual benefit or protection, even though the employees never discussed bringing Lydia’s comments to management or taking any action at all. The Board reiterated that the employees’ objective of group action does not actually have to be expressed during the communication.

The Board went on to say that the concerted activity was protected, notwithstanding the company’s assertion that the Facebook exchange violated its anti-harassment and anti-bullying policies. First, the Board held that the exchange did not constitute harassment under the company’s policies. Second, the Board held that if the company had maintained policies that prohibited this type of communication, such policies would be unlawful.

Board Member Brian Hayes dissented from the opinion. Hayes said the Facebook exchange was nothing more than griping around the “virtual water cooler.” He argued that while the exchange was concerted (in the sense that it was group activity), it was not undertaken for the mutual aid and protection of the employees involved. While the Facebook exchange showed mutual disagreement with Lydia’s criticism, the employees did not contemplate doing anything in response. Lydia did tell Marianna she would report them to their supervisor, but Marianna did not share that information with any other employees during the Facebook exchange. And there was not credible testimony that Marianna intended to discuss Lydia’s criticisms with their supervisor.

Member Hayes said he would have found protected concerted activity if Marianna had informed her co-workers that Lydia planned to report them and had asked how they should respond. However, he noted that these were not the facts before the Board. (It should be noted that Brian Hayes’ term on the Board expired in December 2012 and he is now a shareholder in the Washington, D.C. office of Ogletree Deakins.)

Implications of Hispanics United

• Employers should still enforce their anti-harassment or anti-bullying policies, addressing conduct that truly rises to the level of harassment.

• However, employers should tread lightly when (1) the conduct at issue involves communications about terms and conditions of employment and (2) the communications are merely unpleasant or embarrassing for the company (i.e., not really harassment). In such instances, if there is even an argument that employees might be considering group action or talking to management, the Board will likely find the communications are protected.

• Employers should ensure their anti-harassment and anti-bullying policies are worded clearly and provide examples of prohibited conduct. The policies should not be so broad that they could be interpreted by the Board to prohibit legitimate (albeit heated) discussions among employees about their terms and conditions of employment.

In light of the D.C. Circuit Court of Appeals’ decision in Noel Canning v. NLRB on January 25, 2013, it is uncertain whether the Board had the required quorum to issue this decision. (For a detailed discussion of the Noel Canning decision, click here.) Nonetheless, it would be prudent for employers to continue to follow the practice tips outlined above.