NLRB: Facebook Comments ‘Protected Concerted Activity’

NLRB: Facebook Comments ‘Protected Concerted Activity’
October 25, 2011

A September National Labor Relations Board decision reversed the termination of five employees fired for posting on the Facebook social networking site negative comments regarding their workplace. The binding legal determination, however, has elicited concerns from free-market advocates that it limits employer rights in at-will work environments.

Five employees of Hispanics United of Buffalo, an organization in upstate New York that provides social services to low-income individuals, were fired on October 12, 2010 for obscenity-laced Facebook comments related to a workplace remark by another colleague who had ridiculed their work productivity.

After reading the Facebook discussion, the offended party made a HUB supervisor aware of the comments, resulting in the dismissals of the five employees on the grounds the posts violated HUB’s policy on harassment.

“Under U.S. labor laws, the right of employers to punish employees who disparage their supervisors is severely constrained,” notes Ryan Radia, associate director of technology studies at the Competitive Enterprise Institute, a Washington, DC-based, free-market think tank.

‘Protected Concerted Activity’
NLRB Administrative Law Judge Arthur Amchan ruled in favor of the terminated employees, basing his September 2011 decision on the legal principle that the five employees were involved in protected concerted activity. He ordered HUB to reinstate the five workers with back pay.

Amchan found HUB terminated the five employees in violation of the National Labor Relations Act, which states, “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 25 concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Amchan wrote, “By discharging the discriminatees on October 12, Respondent [HUB] prevented them by taking any further group action vis-à-vis [their colleague’s] criticisms. Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

Despite some of the employees’ use of obscene language, Amchan found there were no “outbursts” “so opprobrious as to lose protection under the Act,” citing four factors—that the discussion took place outside the workplace environment, the subject matter of the Facebook conversation, the nature of the outbursts, and the possibility that the outbursts were provoked by an employer’s unfair labor practice.

‘Deserves No Special Protections’
Reviewing the employer’s anti-harassment policies, Amchan determined the comments did not constitute harassment because the employees did not violate HUB’s harassment and anti-bullying policy guidelines since the Facebook posts contained no reference to the offended worker’s sex, race, or disabilities. The judge also found no evidence the comments would have affected the colleague’s work performance.

“If we had a free labor market, employers and employees would be free to voluntarily negotiate employment terms, and the judicial system would serve to enforce and interpret such arrangements” instead of deciding these things for them, Radia said.

“If employees want the freedom to criticize their bosses on Facebook without repercussions, they should be free to seek such permission and join with other employees to negotiate labor terms on a group basis,” he continued. “However, under at-will employment, the legal system should assume that unless otherwise specified, so-called water-cooler talk by employees deserves no special protections.”

Alyssa Carducci (ad.carducci@gmail.com) writes from Tampa, Florida.