NLRB Rules Employer’s Termination of Non-Union Employees for Facebook Posts Violated NLRA

by Littler

In another decision that affects non-union as well as union employers, the National Labor Relations Board recently ruled that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the "water cooler." In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the Board found that a non-union employer's termination of five employees for Facebook postings was unlawful, awarding the employees full reinstatement and backpay. 

The controversy began when one employee – Lydia – criticized the work of five of her co-workers. One of the criticized employees – Marianna – sent this message from her personal computer at home to the other four employees: 

"Lydia . . . feels that we don't help our clients enough . . . . I about had it! My fellow coworkers how do u feel?”

The employees were not amused and, while off duty, posted messages on Marianna's Facebook page making that clear. Lydia also responded on the same Facebook page, demanding that the four "stop with ur lies about me." She then complained to her supervisor that the postings violated the employer's "zero tolerance" policy against "bullying and harassment." The employer investigated and, agreeing with Lydia that its policy had been violated, fired Lydia's five co-workers. 

The NLRB upheld an administrative law judge's decision that the terminations violated the National Labor Relations Act (the "Act"), even though no union was involved. The Board concluded that whether the comments were made on line, by way of social media, or "around the water cooler" was irrelevant to the analysis. Instead, the Board focused on whether the postings were:

  • "Concerted" activity under the Act;
  • Known to be concerted by the employer's supervisor, who was shown the postings;
  • "Protected" under the Act; and
  • The motivation for the terminations. 

The second and fourth elements were undisputed.1 On the first and third elements, the Board, with Member Hayes dissenting, found against the employer. The postings were concerted, the Board concluded, because it was "implicitly manifest" that the co-workers' postings had the "clear 'mutual aid' objective of preparing [the] coworkers for a group defense to [Lydia's] complaints." As to the third element, the Board considered the postings protected because they related to the employees' job performance and objectively could not be considered "bullying" or "harassing." The dissent objected to the majority's reasoning, finding there was "insufficient evidence that either the original posting or the views expressed in response to it were for mutual aid or protection." Specifically, Member Hayes emphasized, "the mere fact that the subject of discussion involved an aspect of employment—i.e., job performance—is not enough to find concerted activity for mutual aid and protection. There is a meaningful distinction between sharing a common viewpoint and joining in a common cause." 

The decision is yet another by the NLRB that is directed to non-union employers in addition to employers whose employees are represented by a union. In the last year, the NLRB has invalidated the mandatory arbitration agreement of a non-union employer2 and terms in non-union employers' employee handbooks.3 It has also struck down a provision in a company's at-will employment agreement that prohibited employees from disclosing "confidential information," including "personnel information," to individuals "outside the organization."4 There is little reason to believe this trend will abate or even slow in the coming year. 

A first key lesson to be learned from this and other recent cases is the importance for all employers, whether union or non-union, of reviewing all employee-related policies with an experienced labor attorney who is familiar with the NLRB and the National Labor Relations Act. A good starting place would be the employer's social media policy, followed by a review of any arbitration agreements and the employee handbook.  

Second, all employers should be cautious when basing employment decisions on Facebook or other social media postings. In addition to the issues raised in Hispanics United of Buffalo, there are privacy issues that can arise. Employers should consider postings, such as those in Hispanics United of Buffalo, to be analogous to conversations on non-work time at the "water cooler." Despite the potential for social media "discussions" to be played and replayed to an extremely wide audience, the NLRB will analyze their protected nature the same way that it analyzes a whispered conversation in the employee lunch room or parking lot. 

Finally, whenever employer discipline or other adverse employment actions are based on employee communications, employers should consult counsel to make certain the speech is not "concerted, protected" speech under the Act.

1 There was no dispute that the employer knew of the postings because Lydia gave her supervisor a copy of them. There was also no dispute that the postings were the basis for the employees' termination.

2 D.R. Horton, 357 NLRB No. 184 (Jan. 3 2012). See also Henry Lederman, Gavin Appleby, and William Emmanuel, NLRB Strikes Down Arbitral Class Action Waiver, Littler ASAP (Jan. 9, 2012).

3 TT&W Farm Products, Inc., 358 NLRB No. 125 (Sept. 11, 2012); Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept 7, 2012). See also Chip McWilliams, Philip Gordon, and Kathryn Siegel, Social Media Policies in the NLRB's Crosshairs, Littler ASAP (Oct. 9, 2012).

4 Flex Frac Logistics, LLC, 358 NLRB No. 127 (Sept. 11, 2012).

Alan Levins is a Shareholder in Littler Mendelson's San Francisco office. If you would like further information, please contact your Littler attorney at 1.888.Littler,, or Mr. Levins at

Written by:


Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.