The NLRB has filed a complaint against an employer for terminating five employees for statements they posted on Facebook.

This complaint alleges the postings by employees of Hispanics United of Buffalo were protected because the employees were “concertedly complaining on [the] Facebook page regarding working conditions … .” Complaining about work conditions is considered a protected activity under the National Labor Relations Act (NLRA) Section 7.

The NLRB settled its two previous cases in which employees were terminated for using social media. In the first one, an ambulance driver was terminated after posting disparaging remarks about her supervisor on Facebook, in violation of the employer’s social media policy. In the second, the NLRB went after Reuters for an overly broad social media policy that “chilled” the rights of employees. Specifically, the NLRB took issue with the termination of an employee who tweeted, “One way to make this the best place to work is to deal honestly with Guild members.”

The Hispanics United of Buffalo case is different than the other two cases in two noteworthy ways. First, the case does not involve unionized employees, as the NLRA protects both unionized and nonunionized employees. Second, the case does not focus on a social media policy, but instead looks at the employer’s behavior.

In each of the three cases, the NLRB has taken the position that the activity was protected because the communication was allegedly about a protected issue, like work conditions or wages.

But the Hispanics United of Buffalo case comes on the heels of a memo released by the NLRB last month, which explains that the NLRA does not protect an employee who posts offensive remarks generally. The line between concerted activity and disparaging remarks has left many employers scratching their heads.

Accordingly, employers should seek counsel when making any employment-related decision based on an employee’s activity on a social media website. Also, employers should have a well-drafted social media policy. Such a policy must be drafted carefully to ensure that rules related to social media are not overreaching, and do not infringe on any protected activity.