Thursday, May 19, 2011

NLRB issues another complaint over a Facebook termination

Like I said yesterday in discussing the NLRB’s position on social media terminations, “The policy direction of the NLRB is a lot like the weather in Florida—if you don’t like it, wait 5 minutes and it will probably change.” Consider the following, courtesy of the NLRB’s website:

The National Labor Relations Board has issued a complaint alleging that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues….

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 other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

Unlike the case I discussed yesterday (in which the employer received a pass for terminating a tweeting employee for insubordination), the NLRB takes issue with these terminations because they “involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.”

This case is set for trial in 5 weeks. Like the American Medical Response case before it, this case could always settle. There is, however, hope on the horizon that employers will finally receive the guidance they crave on the handling of social media under the National Labor Relations Act. If the NLRB’s press release is any indication, however, employers should not hold out hope that the NLRB will give employers a pass on social media posts as protected concerted activity.

As the NLRB’s position on social media continues to evolve, keep watching this space for updates.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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