NLRB judge: Employees can bitch about their jobs on Facebook

By Alison Frankel
September 12, 2011

Note to disgruntled employees: you can’t be fired for complaining about your job on Facebook. That’s the upshot of the first ruling to address employees’ use of social media by a National Labor Relations Board judge. Last week, in a case called Hispanics United of Buffalo, administrative law judge Arthur Amchan said HUB violated the National Labor Relations Act when it fired five employees who commiserated about their jobs on Facebook. Judge Amchan’s ruling endorsed the NLRB’s stance that employees are protected from retribution for job-related postings. “Discussions about the workplace are protected whether they occur at the watercooler or the virtual watercooler,” said Laura Lawless Robertson of Greenberg Traurig, who sent out an alert about the NLRB administrative law judge’s ruling Friday.

The HUB Facebook posts came in response to an October 2010 Facebook warning from one HUB employee that a co-worker was complaining about people in the housing division. “[She] feels that we don’t help our clients enough at HUB,” the warning said. “I [have] about had it! My fellow coworkers how do u feel?”

At least seven HUB employees posted responses, some of which were pretty angry. “Tell her to come do [my] fucking job,” one post said in part. “This is just dum.”

The posts appeared on a Saturday. The following Tuesday, according to Judge Amchan’s ruling, five employees were called before their supervisor, who informed them that their co-worker felt so threatened by the Facebook posts that she had suffered a heart attack. The five employees were fired for bullying and harassment.

Judge Amchan, however, concluded that the Facebook posts constitute protected speech under the NLRA. “Employees have a protected right to discuss matters affecting their employment amongst themselves,” he wrote. “Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected.” The judge also found that the posts were not harassing or threatening, and that the record didn’t establish any link between the Facebook comments and the health of the supposedly bullied HUB co-worker. He ordered HUB to re-instate all five of the fired employees. (HUB counsel Rafael Gomez of Lotempio and Brown didn’t return my call; the docket indicates that HUB intends to ask the full NLRB to review the administrative law judge’s ruling.)

Unless it’s overturned, said Robertson of Greenberg Traurig, Judge Amchan’s ruling offers broad protection to employees. “We know the NLRB has been concerned about the contours of employees using social media because of the uptick of complaints issued by the board,” she said. But because previous cases in which the board said employees were wrongly fired for social media posts have settled, Judge Amchan’s ruling is the first decision to offer guidance to employers. “The decision says you have to be pretty cautious,” Robertson said. “A post only needs to discuss terms of employment to be protected.”

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