NLRB Holds Facebook Kvetching Among Co-Workers Is Protected “Concerted Activity,” But Caution Is Reasonable As Social Media Meets Established Legal Framework
Let’s be clear: this is not a blog about social media. It’s a blog focused on disputes between executives and the companies they work for and manage. Through that prism, we look at many different issues that affect these employment relationships, including pregnancy, politics, sports teams and even – ahem – insurance.
We’ve also written a lot recently about social media -- specifically the impact of Facebook, Twitter, LinkedIn and their kin on employee-employer relations. Social media are rather quickly changing many of the dynamics of how employees and companies interact, and the law is rapidly trying to catch up. That means there’s a fast flow of new developments in this area.
It’s important to write so much about this, we think, to be true to our core purpose of trying to keep you current on these developments. So at the risk of appearing to dominate our pages with references to Facebook, today we’ll introduce you to a new and unique wrinkle to come out of the intersection of the employment world and social media: a limited protection against being fired for workers who use their social media accounts to kvetch together about their jobs or their employers. Readers, meet the recent decision by the National Labor Relations Board in Hispanics United of Buffalo, Inc. and Carla Ortiz.
We should start again with some basics. Most employer/employee relationships are “at will,” meaning generally that employees can be terminated for almost any cause (as we explain in detail here). There are significant exceptions to this, including firings that would violate public policy as defined by state law or employment relationships that are either contractual or under an implied contract. Public employees are often protected by special rules that govern their employment relationships. And, some terminations can violate federal or state statutes – such as firings based on race, gender, age or disability. For this post, we’ll focus on firings prohibited by the National Labor Relations Act of 1935.
To the extent you know about the National Labor Relations Act, you likely know it protects certain employee rights to organize into unions. But outside of forming a union, the Act prohibits firing an employee for certain “concerted activity” about his or her job with other employees, if the employer knows about the “concerted activity.” This “concerted activity” protection applies to non-union employees as well as union ones. The NLRB defines “concerted activity” as employees acting “together to try to improve their pay and working conditions or fix job-related problems.”
I think you can see where this is going when we add in the Facebook ingredient.
Here’s the story that led up to the NLRB’s decision in Hispanics United that employees’ complaints on Facebook about their working conditions are, in some circumstances, protected “concerted activities.” Marianna Cole-Rivera and Lydia Cruz-Moore worked for Hispanics United, a not-for-profit in Buffalo that provides housing and counseling services to those in need. Ms. Cruz-Moore, according to the NLRB’s decision, “often criticized other employees” in discussions with Ms. Cole-Rivera, claiming her co-workers weren’t working hard enough. One Saturday, she texted Ms. Cole-Rivera, telling her that she planned to bring these complaints about her colleagues to the organization’s executive director on Monday. Ms. Cole-Rivera, apparently disagreeing with this idea, posted a message on Facebook telling her co-workers (who presumably were also Facebook friends) about Ms. Cruz-Moore’s plan and asking them how they felt about it.
As you can imagine, a long discussion ensued in the Comments section. Four co-workers and Ms. Cruz-Moore chimed in. On the following Monday, Ms. Cruz-Moore brought a printed version of the page to the executive director, who immediately discharged Ms. Cole-Rivera and the four colleagues who had engaged in the Facebook discussion. The stated cause was violating Hispanics United’s policy against bullying in the workplace.
Ms. Cole-Rivera and her colleagues filed a complaint with the NLRB, contending that they had been fired for discussing job-related issues – essentially, engaging in a “concerted activity.” An administrative law judge held a preliminary hearing and agreed with Ms. Cole-Rivera and her fired fellows, but Hispanics United appealed to the full board.
On the appeal, the NLRB agreed that the firing violated the National Labor Relations Act’s prohibition on terminating employees for “concerted activity.” The Board, voting 3-1, set aside any issue surrounding the new and unique nature of Facebook comments themselves as a reason not to reach its holding: “Although the employees’ mode of communicating their workplace concerns might be novel…the appropriate analytical framework for resolving their discharge allegations has long been settled” under case law and prior rulings. Turning to those rulings on “concerted activity” – many of which arise out of such 20th-Century modes of communicating, like shouting obscenities at the shop steward or agreeing as a group to walk out of the machine shop when it’s too cold to work – the majority of the Board held that the firing of Ms. Cole-Rivera and her colleagues violated the law.
This decision is only at the beginning of what will be, we think, a stream of disputes between employers and employees about work-related Facebook communications. As this Slate article explains, the business community – which unsurprisingly doesn’t like criticism on the Internet, even if it’s just complaints being shared among employees – is not at all pleased with the ruling.
So, until there are more decisions to provide guidance here, what can we learn from Hispanics United? Primarily, it’s important to remember that the protection from termination for “concerted activity” is narrow – not every complaint about your business on Facebook falls within this ruling. Colleague Andrew Torrez noted an NLRB case in October which allowed a car dealership to fire an employee who complained about work on his Facebook page. To avoid any doubt, it’s a good rule of thumb, at this point, to be rather circumspect in what you say about work on your social media accounts.