NLRB Orders Reinstatement of Fired Nonunion Facebook Posters

The National Labor Relations Board (NLRB) is continuing its campaign against employers who retaliate against employees for social media posts complaining about their jobs.  This time the NLRB charged a nonunion nonprofit corporation, Hispanics United of Buffalo, Inc., which fired five employees for social media posts responding to a coworker’s criticism of other employees’ efforts.  Human resource directors who believed the NLRB intended to limit its enforcement to union shops are in for a rude awakening.

The facts demonstrate that employers will have to walk a very fine line in dealing with social media.  The first employee post read “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do you feel?”  Subsequent responses defended employees’ performance and instead blamed working conditions and staffing issues for the organization’s alleged problems.  Some of the responses included profanity. Hispanics United claimed the responses constituted harassment of Cruz.

The NLRB found that the social media discussions were “protected concerted activity” regarding working conditions and that Hispanics United could not retaliate against the employees for their posts.  The board found that it was “irrelevant” whether the employees were attempting to change the conditions they were discussing or just complaining.

The NLRB has in the past distinguished cases involving posts by individual employees which were not intended to spark conversation with coworkers, finding that such posts are not “concerted” activity, but a post can arguably change from unilateral to concerted as soon as a coworker retweets it or hits her “Like” button.  It is uncertain whether the NLRB would have seen the case differently had Hispanics United disciplined only the initial poster, who called out a coworker by name and arguably did not comment on working conditions, without also firing the subsequent commenters who moved the conversation in a somewhat more substantive, albeit angry, direction.  The opinion notes “the fact that the Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

This is apparently the first time the board has enforced the statute in response to non-union workers’ social media communications.  Also, unlike past cases (which settled), the NLRB’s position appears to be based solely on the organization’s actions rather than an overbroad social media policy prohibiting online criticism.

The case is a reminder that, as Damon told the American Medical News last November, the NLRB intends to treat online speech the same as offline speech despite employers’ concern that social media is more problematic than water cooler talk because of its potential audience.  While online posts may be more analogous to giant, permanent billboards than private conversations, the NLRB has been unwilling to find that these concerns outweigh its mandate to protect concerted employee speech.

The organization was ordered to reinstate the employees and pay them back pay and to post a notice about employees’ rights under the National Labor Relations Act (NLRA).