In our June 21, 2011 Bulletin, we discussed two recent social-networking related complaints filed against employers by the National Labor Relations Board (NLRB). One of those complaints was against a New York non-profit organization that fired five employees for alleged harassment of a co-worker. On September 2, 2011, following a hearing on the complaint, an NLRB Administrative Law Judge (ALJ) found that the employer’s discharge of those five employees was unlawful and ordered them to be reinstated with backpay. Text of the full decision.

In response to criticisms by a fellow co-worker, the five employees posted comments on Facebook discussing and defending their job performance. Claiming the Facebook postings constituted harassment of the co-worker, the employer fired the five employees. The ALJ, however, decided that the employees’ Facebook discussion was protected concerted activity under Section 7 of the National Labor Relations Act. As such, it was unlawful for the employer to fire the employees for those comments. The ALJ noted that it was “irrelevant … that the [employees] were not trying to change their working conditions and that they did not communicate their concerns to [the employer].”

This decision marks the first ALJ ruling following a hearing regarding employee Facebook postings. The employer has the right to appeal the decision to the NLRB in Washington.