In its latest effort to address social media in the workplace, the National Labor Relations Board announced in a May 18 press release that it had filed a complaint against a New York non-profit organization alleging that it unlawfully terminated five employees who complained about working conditions on Facebook.

According to the complaint filed by Buffalo Regional Director Rhonda Ley, Hispanics United of Buffalo’s termination of five employees who criticized workload and staffing conditions on Facebook constituted an unfair labor practice.

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from four other employees who defended their job performance and criticized working conditions, including workload and staffing issues. After learning of the posts, Hispanics United discharged all five employees, claiming that their comments constituted harassment of the employee originally mentioned in the Facebook post.

The complaint alleges that the Facebook discussion was protected concerted activity under Section 7 of the National Labor Relations Act because it involved a conversation among fellow employees about the terms and conditions of their employment, including their job performance and staffing levels.  A hearing is scheduled for June 22, 2011.

In its recent settlement of a similar case involving an employer in Connecticut, American Medical Response (AMR), the NLRB warned employers against maintaining policies that restrict the right of workers to discuss jobs conditions with coworkers using social media.  Unlike the AMR case, the NLRB complaint against Hispanics United does not allege that the employer maintained an unlawful policy; the complaint focuses exclusively on the employer’s termination of the five employees who participated in the Facebook conversation.  Moreover, whereas the AMR case involved unionized employees, the five employees terminated by Hispanics United were non-union employees – illustrating the fact that Section 7 rights extend to all employees, whether unionized or not.

The Hispanics United complaint also follows closely on the heels of a highly publicized case involving Twitter, in which the NLRB declined to issue a complaint against the Arizona Daily Star.  Based on the Hispanics United complaint and the Board’s press release announcing issuance of the complaint, however, it appears that the factors that led the Board to decline to issue a complaint in the Arizona Daily Star case — which involved a single employee’s inappropriate and offensive Twitter posts on subjects unrelated to terms and conditions of employment – are not present in the Hispanics United case.

The Hispanics United complaint further reinforces the Board’s focus on social media issues in the workplace.  Indeed, Acting General Counsel, Lafe Solomon, has indicated that there were social media cases pending in every Region.  Further, citing significant policy issues and lack of precedent, an April 12, 2011 memorandum issued by the Acting General Counsel directed Regional Directors to submit all cases involving “employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter” to the Division of Advice before any taking any action.

Given the Board’s focus on social media issues and the apparent volume of pending cases implicating these issues, we expect this to be a rapidly developing area to which employers should pay close attention.  We will continue to monitor the Board’s views on social media and provide updates on significant developments.  In the meantime, employers should review existing policies and consider the Board’s emerging position on this issue when disciplining employees for behavior that may be considered to fall within the expanding scope of protected concerted activity.

Posted in NLRB, Protected activity, Section 7, Section 8(a)(1), Social Media
Tags: facebook, General Counsel, Hispanics United, Social Media, Twitter
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Photo of Scott Faust Scott Faust

Scott A. Faust is a partner in the Labor & Employment Law Department, co-head of the Strategic Corporate Planning Group and a member of the Labor-Management Relations Group. He focuses his practice on all aspects of labor and employment law, and regularly handles…

Scott A. Faust is a partner in the Labor & Employment Law Department, co-head of the Strategic Corporate Planning Group and a member of the Labor-Management Relations Group. He focuses his practice on all aspects of labor and employment law, and regularly handles collective bargaining negotiations, arbitration, mediation, counseling and litigation of labor and employment disputes on behalf of his clients.

Labor-Management Relations

Scott represents employers in collective bargaining negotiations, grievance arbitrations, union organizing campaigns, work stoppages, labor injunction proceedings and proceedings before the National Labor Relations Board. He also has extensive experience advising distressed companies and their creditors, as well as buyers and sellers involved in M&A transactions in labor-intensive industries. Scott has negotiated numerous collective bargaining agreements with the United Steelworkers in more than a dozen U.S. states as well as in Canada. He also has negotiated agreements with the United Auto Workers, Canadian Auto Workers, SEIU, Teamsters, Machinists, Operating Engineers, Carpenters, Painters, United Plant Guard Workers, Electrical Workers, Sheet Metal Workers, Chemical Workers, Food and Commercial Workers, Massachusetts Nurses Association and Typographers unions.

Employment Litigation and Counseling

Scott represents employers in labor and employment disputes in state and federal courts and administrative agencies, as well as in mediation and arbitration. Cases he has handled include matters involving wrongful discharge, ERISA, employment discrimination, related employment torts, enforcement of and challenges to non-competition agreements, and administrative proceedings before state and federal agencies. He has litigated cases in state and federal courts in Massachusetts, Pennsylvania, West Virginia, Ohio, Utah, Colorado and North Carolina, including appeals to the U.S. Courts of Appeals for the First and Tenth Circuits.  He also provides day-to-day counseling on general employment matters, including equal employment opportunity and discrimination issues, development of employment policies, workplace restructuring, and employment law compliance.

Thought Leadership

Scott has published articles and given recent presentations on such subjects as Labor and Employee Benefits Issues in Corporate Transactions, Issues and Opportunities in Labor Intensive M&A Transactions, Trends in Private Sector Collective Bargaining, Electronic Workplace Monitoring and Surveillance, Duty to Provide Information in Bargaining, NLRA Compliance Issues, and Strikes in the Health Care Industry. Scott has been ranked in Chambers USA as a leader in labor and employment law.

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