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  • NLRA
  • October20th

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    Employers who do not employ “union employees” are sometimes caught unaware that their employees are protected under certain provisions of the National Labor Relations Act (the “NLRA”). In particular, Section 7 of the NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (emphasis added). Section 8(a) of the NLRA makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.

    Based on these provisions of the NLRA, the National Labor Relations Board (the “Board”) recently decided its first case ever regarding an employer basing its employment decisions on the use of social networks by employees. The Board, in Hispanics United of Buffalo vs. Carlos Ortiz, found against a New York non-profit organization for terminating five employees due to the employees’ Facebook discussion about a co-worker. In the case, the employer claimed that a Facebook discussion by and between the five employees regarding another co-worker’s criticism of their job performance amounted to bullying and terminated the employees under the employer’s anti-harassment policy in the employee handbook. The employees brought suit against the employer stating that the Facebook discussion was protected under the NLRA because it was a concerted discussion for the purpose of protection.

    The NLRB Administrative Law Judge ruled the employees’ Facebook postings, discussing issues regarding the workplace and work productivity, was protected speech under Section 8 of the NLRA. The judge ruled that the “employees were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [their colleague] was going to make to management. By discharging the employees, the employer prevented them from taking any further group action vis-a-vis [their colleague’s] criticisms.”
    The judge then analyzed the speech against some of the limited exceptions to NLRA Section 7 protection. The factors for determining whether an exception to Section 7 applies are found in the NLRB’s decision in Atlantic Steel Co. including: (a) the place of the discussion, (b) the subject matter of the discussion, (c) the nature of the employee’s outburst, and (d) if the outburst was provoked by the employer. The judge found that none of the factors applied to this particular case. Even more importantly, the judge stated that it was basically irrelevant that the discussion took place in a public forum, like Facebook, where non-employees were able to see the posts.

    Finally, the judge took into consideration the harassment policies posted by Hispanics United of Buffalo and found that no type of harassment (sex, religion, race, etc.) as stated in the employee handbook applied. Therefore, as the employees did not violate the employer’s harassment policy or engage in activity disqualifying them from protection under the Act, the employees’ Facebook discussion was protected, and the employees were terminated unlawfully. The judge ordered the employer to reinstate each employee to their former position as well as provide them with backpay.

    In light of this ruling, employers should be mindful of making employment decisions based on employees using social media to air their employment related issues and problems. In addition, employers should ensure that their social media policies conform in regards to dealing with situations inside and out of the workplace.