Ferrara Fiorenza P.C.

EEOC Continues to Impact Social Media Issues

Recently, the National Labor Relations Board (NLRB) required an employer to rehire five workers it had terminated after the workers posted derogatory comments about a co-worker and their employment with the company on Facebook. The NLRB found that the Facebook communications were a "concerted activity" that were protected by the National Labor Relations Act (NLRA). 

This case involved five employees who worked for Hispanics United of Buffalo, Inc. (HUB), a non-profit that provides social services to its economically disadvantaged clients in the Hispanic community of Buffalo. One of the five made a posting on Facebook on a Saturday (outside of her normal working hours), in response to criticisms from another HUB employee named Lydia Cruz. Specifically, the employee posted on Facebook that "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers how do u feel?"  The other four employees responded with their own Facebook postings, saying such things as "What the Hell, we don't have a life as is, What else can we do???" and "What the f. .. Try doing my job."

Cruz saw the posts and complained to HUB's Executive Director, attempting to prompt HUBto terminate or at least discipline the Facebook posters. As a result, the five posters were terminated by the Executive Director. The five filed charges against HUBwith the NRLB. HUBargued at the hearing that it terminated the five individual posters because: 1) Cruz had suffered a heart attack as a result of the Facebook comments, requiring HUBto have to pay Cruz compensation; and 2) the posts constituted bullying and harassment in violation of HUB’s policies.

The NLRB Administrative Law Judge (ALJ) rejected HUB's rationale for the terminations, ruling that the employees had engaged in “protected concerted activity” thereby making their terminations unlawful.  The ALJ found it irrelevant that the workers were not trying to change their working conditions, that they did not communicate their concerns to HUB, and that there was no express evidence that the employees intended to take further organizing action. Nevertheless, the Judge concluded that employees simply “have a protected right to discuss matters affecting their employment amongst themselves.” Based on these findings, the Judge ruled that HUBmust offer all five employees reinstatement as well as backpay compensation with interest.

Given this ruling, employers should carefully review their social media policies and analyze  any employment decisions based on employee activity on social media websites. As this case demonstrates, any social media postings that are related to work can potentially be considered “protected activity.”


Excerpted from October 2011 edition of Employment Law Matter.  To see the entire newsletter, click here.