The Labor Board has released its long-awaited second “Facebook case.” To nobody’s surprise, the NLRB has largely adopted the ALJ decision that the Facebook postings in question constitute protected concerted activity under Section 7.
In Hispanics United of Buffalo, an employee threatened to report several of her co-workers to management who she felt did not provide timely and adequate assistance to the organization’s clients. One “criticized” employee learned of this and took to Facebook, where other co-workers chimed in, posting the allegation from the co-worker, criticizing her, defending their job performance, and complaining about working conditions, such as work load and staffing issues.
Most of the Facebook posts were “unprofessional” to say the least – at least one used the F-word, and others insulted the organization’s low-income clients. The criticized employee who started the conversation, however, never informed the other employees that the original co-worker was going to voice the complaint to management. After being made aware of the Facebook posts, the employer terminated the “criticized employees,” believing that their Facebook comments constituted harassment of the original co-worker.
The ALJ and NLRB sided with the “criticized employees,” finding that their discussion was protected concerted activity. The activity was protected because the “employees were directly responding to allegations they were providing substandard service to the Respondent’s clients” and such “criticism” could “negatively impact . . . their employment.” The postings were concerted because the employees were joining a “common cause” and “taking a first step towards taking group action to defend themselves against the accusation they could reasonably believe . . . was going to [be made] to management.”
In dissent, Board Member Brian Hayes – in one of his last decisions before his term expired on December 16, 2012 – made some compelling points – including that the actions were not concerted because the employee who started the discussion on Facebook failed to tell her co-workers that the original employee was going to complain to management. Board Member Hayes said that there is a difference between “sharing a common viewpoint and joining in a common cause” and that the employees in question were only “venting to one another in reaction to . . . complaints. This does not constitute concerted activity under the precedent.” The majority rejected this view, instead finding that the employee who started the Facebook conversation had the “object of preparing her coworkers for group action.”
Protected concerted activity and social media cases are a major enforcement priority for the Labor Board. As a reminder, two or more employees have the right to voice complaints about terms or conditions of employment – even on Facebook, with a global audience. A single employee is also protected if the employee acts on the authority of other employees, seeks to initiate or induce group action, or expresses a concern which is a “logical outgrowth” of other concerns expressed by a group. The protections afforded by this doctrine apply to both non-union as well as union employees.
Many employers are frustrated by these Labor Board cases involving Facebook, believing that employees now have free reign to criticize them in a way that can impact their reputation. In the “old days,” protected concerted activity rarely left the shop floor. To the extent that the employee’s claims were misleading or exaggerations, few people ever knew it. Of course, Facebook changes all of that and now these same misleading or exaggerated claims can go viral in a matter of hours.
Unfortunately, it appears that the NLRB has little sympathy for this concern. While the General Counsel, in its Second Report on Social Media, said that it would consider the extent to which the Facebook posts “disparage the employer’s products and services,” before bringing a complaint, the employees in Hispanics United of Buffalo did not cross the line in the Board’s view – even though many employers would disagree with that position. For now, employers must take a very cautious approach to issuing employee discipline for Facebook postings, or face the wrath of the NLRB and possible reinstatement and back-pay for any such discipline.