The National Labor Relations Board (NLRB) has already indicated its aggressive stance with respect to employer discipline of employees over social media activities, claiming that various policies and practices with respect to social media are overbroad and violate employees’ Section 7 rights under the National Labor Relations Act. The American Medical Response and Thomson Reuters matters were loud shots across the bow, and the shots keep coming.
In May 2011, the NLRB filed a complaint against Hispanics United of Buffalo, a non-profit organization, claiming that its termination of five employees who criticized workload and staffing conditions on Facebook was an unfair labor practice. A Hispanics United employee, in advance of a meeting with management regarding working conditions, posted a comment to her Facebook page regarding a co-worker’s allegation that employees did not do enough to help the organization’s clients. In response, four other employees posted, defending their job performance and criticizing working conditions. After learning of this activity, Hispanics United fired all five employees, claiming that the posts constituted harassment of the employee who was the subject of the original post.
The NLRB has claimed that the Facebook discussion amongst all five employees constituted protected Section 7 activity because it involved a discussion about the terms and conditions of their employment. A hearing is scheduled for later this month.
This is evidence of a continuing focus of the NLRB and, indeed, that agency has stated that there are social media cases pending in each of its regions.
As a practical matter, what this means is that the law in this area continues to develop rapidly, and employers must tread carefully when implementing social media policies or disciplining employees for social media activities.