We have long been waiting to see how a National Labor Relations Board (NLRB) Administrative Law Judge would rule on a “Facebook firing” case, and we wrote about this particular case in May – NLRB Continues its Focus on Facebook Firings.  We now have the answer – and employers may need to tread cautiously!  Because this is a case of first impression, we decided to issue a joint post on the topic with our colleague Rick Ross, who authors the blog Employer Law Update (check him out!) 

On September 2, 2011, the NLRB ruled that Hispanics United of Buffalo, Inc. (HUB) violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it terminated five employees for criticizing a sixth co-worker’s job performance on Facebook.  HUB took action because the postings violated HUB’s policy on bullying and harassment.

Here are some of the postings which started with:

  • 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?

Other workers then engaged:

  • What the f. .. Try doing my job I have 5 programs
  • What the H…, we don’t have a life as is, What else can we do???
  • Tell her to come do mt [my] f…ing job n c if I don’t do enough, this is just dum
  • I think we should give our paychecks to our clients so they can “pay” the rent, also we can take them to their Dr’s appts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries … (insert sarcasm here now) 

The original poster responded:

  • Lol.  I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don’t provide, like washer, dryers stove and refrigerators, I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human love ya guys

 The employee about whom they were complaining (Lydia Cruz-Moore) then reacted:

  • Marianna stop with ur lies about me. I’ll b at HUB Tuesday..

As you all know, the NLRA protects an employee’s right to discuss “terms or conditions of employment.”  These posts, however, look like “trash talking” – not a discussion of terms and conditions of employment.  Yet, in concluding that the terminations violated the NLRA, the ALJ stated:

Employees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.  That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management.  By terminating the five discriminatees for discussing Ms. Cruz-Moore’s criticisms of HUB employees’ work, Respondent violated Section 8(a)(1).

The ALJ further concluded “[i]t is irrelevant to this case that the [Facebook posters] were not trying to change their working conditions and that they did not communicate their concerns to [HUB].”  (Emphasis added.)  It seems to us that this fact would be relevant! 

Thus, this decision appears to be a stretch of NLRB law.  Indeed, the ALJ improperly analogized an employee’s right to complain about work schedule changes with an employee’s right to criticize a co-worker’s performance.  (We think the case law cited is inapplicable and irrelevant.)  This is simply not a case that involves any discussion of, or criticism of, the “terms or conditions of employment,” e.g., criticism of a supervisor or their working conditions.  Instead, this is a case in which employees have criticized a co-worker’s job performance using profane language – in violation of an anti-bullying and harassment policy.

Unfortunately, this decision appears to have gone well beyond the reach of the NLRA.  Presumably, it will be appealed by the employer to the full Board, and if necessary to the Court of Appeals.  We will keep you posted.

In the meantime, did this ALJ make the right decision?  Should employees be protected from termination when criticizing a co-worker?  What do you think?