Washington Labor Law Blog: Insights on the Law for Washington Employers

NLRB administrative law judge concludes discharge for Facebook posts was unlawful.

Hispanics United of Buffalo, (HUB) provides services to low-income clients.  One HUB employee posted the following message on her Facebook account about a coworker, Lydia Cruz-Moore, who had been complaining about coworkers via text messages and who had indicated she was going to take her complaint to management:

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

Several coworkers joined the online conversation with posts such as:

What the f. .. Try doing my job I have 5 programs

What the Hell, we don’t have a life as is, What else can we do???

Tell her to come do mt [my] fucking job nc if I don’t do enough, this is jus dum

Cruz-Moore complained to management about the posts. HUB responded by firing five of the employees for bullying and violating the organization’s harassment policy. The employees filed a charge with the NLRB and the NLRB issued a complaint.

The NLRA prohibits discharging an employee for engaging in protected “concerted activity.” Because HUB conceded firing the employees for their Facebook posts, the issue in this case was whether those posts constituted protected “concerted activity.”   The ALJ concluded the Facebook postings constituted concerted activity.

The concept of concerted activity focuses on employees acting with or on behalf of other employees. It includes discussions about terms and conditions of employment such as wages. The ALJ reasoned that explicit or implicit criticism of how coworkers perform their jobs is protected concerted activity. That was especially true where, as in this case, some of the posters expected that Cruz-Moore might take her criticisms to management.

Even when conduct is concerted activity, the conduct can lose its protected status if, for example, the conduct was too egregious. Here, the ALJ concluded that the postings did not lose their protected status because the posting were not at work, not made during working hours, were related to the employees’ job performance, and were not “outbursts.”

The ALJ rejected the employer’s argument that the posters violated its “zero tolerance” anti-harassment policy. The ALJ concluded that the policy, which prohibited harassment because of various protected characteristics such as race, age, religion, etc. was not violated because there was no evidence Cruz-Moore was harassed because of any such characteristic. Also, the ALJ concluded there was no evidence the posts would have impacted Cruz-Moore’s job performance. The only rationale for this conclusion was that she “rarely interacted” with the posters.

The ALJ ordered reinstatement of each employee and an award of backpay with interest.

I think this case fails to answer more questions than it answers. For one thing, this decision is from one ALJ, which has different precedential value than does a decision by the Board. We will have to wait to see how the Board rules on the issue.

It is clear, though, from this case and other Board activity, that employees are entitled to job protection for certain social media posts regardless of whether the company is union or non-union.  Before disciplining employees for such posts, the employer must evaluate whether the conduct falls within the NLRB’s definition of “concerted activity.”  (Some employers fall outside the scope of the NLRA because of their size, dollar sales, and type of business activity, but it has nothing to do with whether a company is union or non-union.)

Also, online concerted activity is not going to lose its protection merely because the posters use some profanity or publicly criticize a co-worker.

The case, Hispanics United of Buffalo, Inc., is here.

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