Wednesday, September 7, 2011

NLRB finally gives some real-world guidance on social media as protected, concerted activity

In the NLRB's final act before the long Labor Day weekend, an Administrative Law Judge in Buffalo, NY, issued his decision in Hispanics United—the first written decision in an NLRB case involving social media to result in an ALJ decision following a hearing.

In Hispanics United, five employees claimed that their terminations—on the heals of a Facebook discussion critical of another employee’s job performance—violated their rights under the National Labor Relations Act to join together to discuss the terms and conditions of their employment. The ALJ agreed:

I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.

The ALJ made several key observations about the Board’s treatment of social media posts as protected, concerted activity:

  • “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
  • “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
  • “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.”

This case stands for the proposition that social websites are akin to a digital water cooler. If you wouldn’t discipline for water-cooler talk, then you shouldn’t for social media posts. The difference, though, is that social websites leave a digital trail that makes them tempting fodder for the types of retribution that will result in unfair labor practice charges.

Last month, the NLRB’s Office of General Counsel began to provide some clarity on when and how employees' social media activities are protected. Hispanics United provides added clarity, and should give employers added concern over their ability to regulate their employees’ use of social media inside and outside of the workplace. This case likely will now head to Washington, DC, for disposition by the NLRB. Perhaps we will finally receive some needed guidance from the Board on what has become a beguiling issue for businesses.

(In the meantime, if you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or