New York Firm Unlawfully Fired Workers for Facebook Postings: NLRB

September 15, 2011

In the first ruling of its kind, a National Labor Relations Board administrative law judge has found that a Buffalo, N.Y.-based non-profit organization unlawfully discharged five workers after they posted comments on Facebook related to their work environment. Their online remarks described working conditions, including work load and staffing issues.

The case involves an employee of Hispanics United of Buffalo, which provides social services to low-income clients. After hearing a co-worker criticize other employees for not doing enough to help the organization’s clients, the employee posted those allegations to her Facebook page. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues.

Hispanics United later discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The NLRB says it received an increasing number of charges related to social media in the past year, as that particular means of communication continues to grow in popularity. This is the first case involving Facebook to have resulted in an administrative law judge decision following a hearing.

The case was heard by Administrative Law Judge Arthur Amchan on July 13-15, 2011, based on a complaint that issued May 9 by Rhonda Ley, a NLRB regional director in Buffalo, N.Y.

Judge Amchan issued his decision on Sept. 2, finding that the employees’ Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. The judge also found that the employees did not engage in any conduct that forfeited their protection under the Act.

Judge Amchan ordered that Hispanics United reinstate the five employees and awarded the employees backpay because they were unlawfully discharged. The judge’s decision also requires that Hispanics United post a notice at its Buffalo facility concerning employee rights under the Act and the violations found. Hispanics United has the right to appeal the decision to the Board in Washington.

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