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The NLRB's Facebook Decision: What Is Protected and What Is Not?

The impact of social media on the rights of employees has been a hotly debated subject for several years.  The NLRB raised the stakes with its recent decision in Hispanics United of Buffalo, Inc., No. 03–CA–027872 (Dec. 14, 2012).  This case has been widely discussed in the media, yet the the actual implications of the decision are not well understood.

1. The Decision in Hispanics United

Hispanics United is a non-profit business providing social services in Buffalo.  One employee (Cruz-Moore) was often critical of other employees.  She announced that she was going to raise her concerns with the Executive Director of the company.  Another employee (Cole-Rivera) then made the following post on her Facebook page:

Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?

Four other employees posted responses (using their own computers, not work computers) stating that they agreed with Cole-Rivera.  Cruz-Moore complained to the Executive Director that she had been "slandered and defamed."  At the Executive Director's request, Cruz-Moore provided a copy of the Facebook comments.  The Executive Director then fired Cole-Rivera and the other four employees for "bullying" Cruz-Moore.  The fired employees filed a charge with the NLRB, claiming that they had been wrongfully terminated.

Applying its prior ruling in Meyers Industries, the NLRB began its analysis by stating that a claim under section 7 relating to the discipline of an employee had four elements:

(1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act;

(2) the employer knew of the concerted nature of the employee’s activity;

(3) the concerted activity was protected by the Act; and

(4) the discipline or discharge was motivated by the employee’s protected, concerted activity.

Only elements 2 and 3 were in dispute.  With respect to element 2, the NLRB considered whether whether the employees acted for "mutual aid and protection" within the meaning of section 7.  The NLRB concluded that, even though Cole-Rivera did not tell her co-workers that Cruz-Moore was planning to express her criticisms to the Executive Director, the manifest purpose of the communications was to prepare a group defense to the criticisms.  The NLRB therefore held that the activity was "concerted" within the meaning of section 7, so that element 2 of the Meyers test was satisfied.

With respect to element 3, the NLRB noted that it has long held that section 7 protects discussions about job performance.  The employer did not dispute that section 7 applies to such discussions on Facebook, but nonetheless argued that these particular discussions were not protected because they constituted bullying and harassment.  The NLRB rejected that argument, noting that (1) the conduct in question did not qualify as harassment under the employer's own policy, and (2) management's legitimate desire to avoid harassment cannot overcome the protected rights of employees based solely on the subjective reactions of others to the protected activity.

The NLRB therefore upheld the administrative judge's order that the company reinstate all of the employees with back pay.  One member of the NLRB dissented, arguing that the employees were not acting "for mutual aid and protection."

2. The Implications of Hispanics United

So what does this decision mean for future cases?  Several important points should be noted:

  • It was undisputed that section 7 applies to Facebook.  Although the media acted as if this was a significant decision, in fact it was a routine application of section 7.  The test under section 7 is whether there was concerted activity.  The medium of that concerted activity (in this case, Facebook) is immaterial.  Other NLRB cases have applied section 7 to YouTube.
  • However, section 7 does not apply to all discussions on Facebook.  The concerted activity must be for the mutual aid and protection of the employees.  Section 7 will not protect gossip and other matters that do not relate to work conditions in some meaningful way.  Even under the facts of Hispanics United, the NLRB was split 2-1 over whether the conduct was protected.
  • Furthermore, section 7 does not apply to all content on Facebook.  The content must reflect concerted action by multiple employees, or at least a call for concerted action.  If an employee posts inappropriate material on Facebook, by itself that is not concerted activity that is subject to section 7.
  • If section 7 applies, it will be important whether the employer has a specific policy prohibiting the conduct.  A generic harassment policy is not likely to cover discussions on Facebook.
  • While it is always possible to discipline employees who engage in seriously inappropriate conduct (for example, if the employees of Hispanics United had called for the other employee to be beaten or killed), the mere fact that someone claims to have been offended is not good enough.  This will be true even if there is a specific harassment policy that applies.  An employer's harassment policy cannot be used to chill legitimate concerted activity.
  • This decision would have no application at all to many other situations, such as when an employee posts trade secrets on Facebook or posts pictures in which he or she is violating other company rules.

To sum it up, if employees engage in legitimate concerted activity on Facebook, they are protected.  But the vast majority of posts on Facebook are not protected by section 7.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes