In its second opinion addressing employee terminations resulting from Facebook posts, the National Labor Relations Board (NLRB) has ordered an employer to reinstate five employees terminated for posting Facebook comments in response to a co-worker's criticism. In a 3-1 decision, the NLRB determined that the comments were concerted activity protected by the National Labor Relations Act (NRLA or Act). This latest decision reinforces that employers must exercise caution before terminating or disciplining employees as a result of their comments on social media.

The case stemmed from a message that an employee of a nonprofit organization posted on Facebook outside of work hours. After Lydia Cruz-Moore told Marianna Cole-Rivera that she planned to discuss her concerns about employee performance with the Executive Director of Hispanics United of Buffalo, Inc. (HUB), Ms. Cole-Rivera posted:

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?

Four co-workers responded, all on their personal computers and on their own time. The employees generally objected to the assertion that their performance was substandard. Ms. Cruz-Moore complained to HUB management about the posts, and on the first workday after the Facebook posts, HUB fired Ms. Cole-Rivera and her four co-workers. The Executive Director of HUB justified the terminations on the ground that the posts violated HUB's zero-tolerance policy for bullying and harassment.

The decision marked the first time the Board analyzed in detail the appropriate framework for evaluating an employee's termination for Facebook posts. The NLRB applied the long-established Meyers Industries framework in holding that the Facebook posts constituted concerted protected activity because the employees had a common cause and were taking the first step toward group action to defend themselves against criticism of their job performance. According to the majority opinion, the employees had the “mutual aid” objective of preparing a group defense to Ms. Cruz-Moore's likely complaints to management.

The NLRB further held that the employer's legitimate concerns of preventing harassment and bullying did not justify policies that discouraged the free exercise of protected concerted activities. The Board stated that the employer’s exclusive reliance on Ms. Cruz-Moore’s subjective reaction to the Facebook posts to establish that the five employees violated the harassment policy was not appropriate. It held that, because "such a wholly subjective notion of harassment is unknown to the Act," the termination of the five employees violated the NLRA.

Employers should take note of the NLRB’s continued focus on social media policies and its view of social media activity as akin to water cooler conversation. The decision should prompt all employers to evaluate their policies regarding employee social media usage and speech outside the workplace. Employers should also train supervisory personnel on how to respond to the increased use of social media.